No. 95-1200
In the Supreme Court of the United States
OCTOBER TERM, 1995
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS
v.
ZELL MILLER, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
WILLIAM E. KENNARD
General Counsel
CHRISTOPHER J. WRIGHT
Deputy General Counsel
DANIEL M. ARMSTRONG
Associate General Counsel
LAURENCE N. BOURNE
Attorney
Federal Communications
Commission
Washington, D.C. 20554
DREW S. DAYS III
Solicitor General
LAWRENCE G. WALLACE
Deputy Solicitor General
PAUL R. W. WOLFSON
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530
202)514-2217
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QUESTION PRESENTED
Section 315(b) of the Communications Act of 1934,
as amended, 47 U.S.C. 315(b), provides that, during
certain periods, broadcast stations must charge poli-
tical candidates, for their campaign advertising, the
"lowest unit charge of the station for the same class
and amount of time for the same period." The
question presented is whether the court of appeals
should have upheld the Federal Communications
Commission's (FCC) authority to provide, by declar-
atory ruling, that causes of action purportedly based
on state law but alleging violations of the federal
`lowest unit charge" requirement are preempted, and
that all disputes over violations of that requirement
must be adjudicated by the FCC, subject to judicial
review exclusively in the federal courts of appeals.
(I)
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PARTIES TO THE PROCEEDINGS
The United States and the Federal Communica-
tions Commission were respondents in the court of
appeals.
The petitioners in the court of appeals were Zen
Miller; Zen Miller For Governor; Pierre Howard;
Georgians For Howard '90; Johnny Isakson; Johnny
Isakson For Governor; Andrew Young; Young
Working For Georgia; Lauren McDonald; Lauren
McDonald For Governor; Roy Barnes; Roy Barnes
For Governor; Tim Ryles; Tim Ryles For Insurance
Commissioner; Warren Evans; Warren Evans
Election Committee; William L. Dickinson, Second
District Campaign Committee; William J. Cabaniss;
Friends of Bill Cabaniss Committee; Spencer T.
Bachus, III; Bachus For Attorney General Com-
mittee; John Teague; James E. Folsom, Jr.; Jim
Folsom, Jr. For Lieutenant Governor Committee Fob
James; Fob James For Governor Committee; Kenneth
D. Wallis; Alabamians For Ken Wallis Committee;
George D.H. McMillan, Jr.; The McMillan Committee;
George Wallace, Jr.; Wallace For Treasurer
Committee; Charles A. Graddick; Graddick For
Governor Committee William J. Baxley; Friends Of
Bill Baxley; Paul Hubbert; Richard Shelby; Don
Siegelman; Jimmy Sullivan; Sonny Hornsby; Friends
of E.C. Sonny Hornsby; Mark Kennedy; Judge Mark
Kennedy For Supreme Court; and Friends Of Judge
Mark Kennedy.
Respondents-interveners in the court of appeals
were Capital Cities/ABC, Inc.; Chris-Craft Indus-
tries, Inc.; The Times Mirror Company; American
Family Broadcast Group, Inc.; Allbritton Communi-
cations Company; CBS, Inc.; Chronicle Publishing
(II)
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Co.; Fox Television Stations, Inc.; Gillett Broad-
casting of California, Inc.; Gillett Communications of
San Diego, Inc.; Great American Television and Radio
Company, Inc.; Kelly Broadcasting Company Kelly
Television Company; Lin Television Company
McGraw-Hill Broadcasting Company, Inc.; Midwest
Television, Inc.; National Broadcasting Company,
Inc.; The New York Times Company, Post-Newsweek
Stations, Inc.; The Providence Journal Company The
Spartan Broadcasting Company Tribune
Broadcasting Company; Westinghouse Broadcasting
Company, Inc.; WKRG-TV, Inc.; WTVT, Inc.;
Meredith Corporation; A.H. Belo Corporation
Cosmos Broadcasting Corporation; Cox Enterprises,
Inc.; and the National Association of Broadcasters.
They are also respondents in this Court under the
Court's Rule 12.6 and are filing a separate petition for
a writ of certiorari seeking review of the judgment
below.
(III)
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TABLE OF CONTENTS
Page
Opinions below . . . . 1
Jurisdiction . . . . 2
Statutory provisions involved . . . . 2
Statement . . . . 3
Reasons for granting the petition . . . . 14
Conclusion . . . . 25
Appendix A . . . . 1a
Appendix B . . . . 16a
Appendix C . . . . 48a
Appendix D . . . . 87a
TABLE OF AUTHORITIES
Cases:
Ackerman v. Columbia Broadcasting Sys.,
301 F. Supp. 628 (S.D.N.Y. 1969) . . . . 7
Alpha Broadcasting Corp., 102 F.C.C. 2d 18
(1984) . . . . 5
Belluso v. Turner Communications Corp., 633 F.2d
393 (5th Cir. 1980) . . . . 7
Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691
(1984) . . . . 16, 17
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) . . . . 18-19
Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.), cert.
denied, 429 U.S. 890 (1976) . . . . 19
Chronicle Publishing Co., 6 F.C.C. Rcd 7497
(1991) . . . . 5
City of New York v. FCC, 486 U.S. 57 (1988) . . . . 9, 13
15, 16, 17
Community Broadcasting Co., 35 F.C.C.2d 663
(1972) . . . . 5
Daly v. Columbia Broadcasting Sys., 309 F.2d 83
(7th Cir. 1962) . . . . 7
(IV)
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V
Cases-continued:
Page
David E. Henderson (Outlet Communications, Inc.),
5 F.C.C. Red 2835 (1990), aff'd, 7 F.C.C. Rcd 632
(1992) . . . . 5
DeYoung v. Patton, 898 F.2d 628 (8th Cir. 1990) . . . . 7
Eugene T. Smith, 34 F.C.C.2d 623 (1972) . . . . 5
Farmers Educ. & Coop. Union v. WDAY, Inc.,
360 U.S. 525 (1959) . . . . 4, 15
FCC v. ITT World Communications, Inc., 466 U.S.
463 (1984) . . . . 21
Fidelity Federal Savings & Loan Association v.
de la Cuesta, 458 U.S. 141 (1982) . . . . 9, 16, 17
Garner v. Teamsters Local Union No. 776, 346 U.S.
485 (1953) . . . . 16
Health Insurance Ass'n of America v. Shalala,
23 F.3d 412 (D.C. Cir. 1994), cert. denied, 115 S. Ct.
1095 (1995) . . . . 19
Hernstadt v. FCC, 677 F.2d 893 (D.C. Cir. 1980) . . . . 4
Holden E. Sanders v. Station WIXC, 52 F.C.C.2d
592 (1975) . . . . 5
James H. Doyle, 38 Rad. Reg. 2d (P & F) 330
(1976) . . . . 5
KGWA Pub. Broadcasting Serv., Inc., 34 F.C.C. 2d
1103 (1972) . . . . 5
KVUE, Inc. v. Moore, 709 F.2d 922 (5th Cir. 1983),
aff'd mem., 465 U.S. 1092 (1984) . . . . 7, 16
Kay v. FCC, 44.3 F.2d 638 (D.C. Cir. 1970) . . . . 9
Ken Jennison, 38 Rad. Reg. 2d (P & F) 1393 (1976) . . . . 5
Kennedy for Pres. Comm. v. FCC, 636 F.2d 417
(D.C. Cir. 1980) . . . . 4
Korral Radio, Inc., 48 F.C.C.2d 531 (1974) . . . . 5
Louisiana Public Service Comm'n v. FCC, 476 U.S.
355 (1986) . . . . 16
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VI
Cases-Continued:
Page
Midnight Sun Broadcasters, Inc., 40 Rad. Reg.
2d (P & F) 660 (1977) . . . . 5
Mississippi Power & Light Co. v. Moore, 487 U.S.
354 (1988) . . . . 10
New York State Comm'n on Cable Television v. FCC:
669 F.2d 58 (2d Cir. 1982) . . . . 19
749 F.2d 804 (D.C. Cir. 1984) . . . . 19
North Carolina Utils. Comm'n v. FCC, 537 F.2d
787 (4th Cir.), cert. denied, 429 U.S. 1027 (1976) . . . . 19
Pennsylvania R.R. v. United States, 363 U.S. 202
(1960) . . . . 18
Permian Basin Area Rate Cases, 390 U.S. 747
(1968) . . . . 22
Port of Boston Marine Terminal Ass'n v. Reder-
iaktie Bolaget Transatlantic, 400 U.S. 62 (1970) . . . . 18
Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4
(1942) . . . . 3
Senator Wendell Anderson, 44 Rad. Reg. 2d (P & F)
831 (1978) . . . . 5
Southern Arkansas Radio Co., 5 F.C.C. Rcd 4643
(1990) . . . . 5
Telecommunications Research and Action Center
v. FCC, 26 F.3d 185 (D.C. Cir. 1994) . . . . 19
Turner Communications Corp., 36 Rad. Reg. 2d
(P & F) 537 (1976) . . . . 5
United States v. Storer Broadcasting Co., 351 U.S.
192 (1956) . . . . 18, 22
Warren J. Moity, Sr., 46 Rad. Reg. 2d (P & F) 399
(1979) . . . . 5
Weinberger v. Hynson, Westcott & Dunning, 412
U.S. 609 (1973) . . . . 18, 22
Wilson v. A.H. Belo Corp., Civ. No. S-91-1206 (LKK)
(E.D. Cal. Apr. 27, 1992) . . . . 21
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VII
Statutes:
Page
U.S. Const., Art. VI, Cl. 2 (Supremacy Clause) . . . . 15, 18
Communications Act of 1934, 47 U.S.C. 151 et seq . . . . 3
312(a)(7), 47 U.S.C. 312(a)(7) . . . . 11, 20
315, 47 U.S.C. 315 . . . . 2, 4, 9
315(a), 47 U.S.C. 315(a) . . . . 4, 7, 19
315(b), 47 U.S.C. 315(b) (1958) . . . . 4
315(b), 47 U.S.C. 315(b) . . . . passim
315(b)(1), 47 U.S.C. 315(b)(1) . . . . 4
315(b)(2), 47 U.S.C. 315(b)(2) . . . . 5
315(d), 47 U.S.C. 315(d) . . . . 9
402(a), 47 U.S.C. 402(a) . . . . 3, 11, 14, 20
Communications Act Amendments of 1952,
Pub. L. No. 82-554, 11, 66 Stat. 717 . . . . 4
Federal Election Campaign Act, Pub. L. No. 92-225,
104, 86 Stat. 7 . . . . 4
5 U.S.C. 554(e) . . . . 22
28 U.S.C. 2342 . . . . 3, 11, 14, 20
28 U.S.C. 2344 . . . . 19
Miscellaneous:
Codification of the Co-remission's Political Program-
ming Policies In re:
6 F.C.C. Rcd 5707 (1991) . . . . 6
7 F.C.C. Rcd 678 (1991) . . . . 6, 7
7 F.C.C. Rcd 4611 (1992) . . . . 6, 7
Law of Political Broadcasting & Cablecasting,
69 F.C.C.2d 2209 (1978) . . . . 6
The Law of Political Broadcasting and Cablecasting:
A Political Primer, 100 F.C.C. 2d 1476 (1984) . . . . 6, 7
Licensees and Cable Operators Reminded of Lowest
Unit Charge Obligations, 4 F.C.C. Rcd 3823 (1988) . . . . 6
Mass Media Bureau Report on Political Program-
ming Audit, 68 Rad. Reg. 2d (P & F) 113 (1990) . . . . 5
Questions and Answers Relating to Political Pro-
gramming Law, 68 Rad. Reg. 2d (P & F) 188
(1990) . . . . 6
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VIII
Miscellaneous:
Page
Radio Station WBGR, 36 Rad. Reg. 2d (P & F) 388
(1976) . . . . 5
S. Rep. No. 96, 92d Cong., 1st Sess. (1972) . . . . 20
Use of Broadcast and Cablecast Facilities By Candi-
dates for Public Office, 34 F.C.C. Rcd 510 (1972) . . . . 6
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In the Supreme Court of the United States
OCTOBER TERM, 1995
No.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS
v.
ZELL MILLER, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the Federal
Communications Commission (FCC) and the United
States of America, respectfully petitions for a writ of
certiorari to review the judgment of the Court of
Appeals for the Eleventh Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-
15a) is reported at 66 F.3d 1140. The declaratory
ruling of the FCC (App., infra, 16a-97a) is reported
at 6 F.C.C. Red 7511. The FCC's order on recon-
sideration (App., infra, 48a-86a) is reported at 7
(1)
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2
F.C.C. Rcd 4123. The FCC's notice of its intention to
issue a declaratory ruling (App., infra, 87a-94a) is
reported at 6 F.C.C. Rcd 5954.
JURISDICTION
The judgment of the court of appeals was entered on
September 29, 1995. On December 21, 1995, Justice
Kennedy entered an order extending the time within
which to file a petition for a writ of certiorari to and
including January 26, 1996. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
1. Section 315 of Title 47, United States Code,
provides in part:
(b) Broadcast media rates
The charges made for the use of any broad-
casting station by any person who is a legally
qualified candidate for any public office in
connection with his campaign for nomination
for election, or election to such office shall not
exceed-
(1) during the forty-five days preceding
the date of a primary or primary runoff
election and during the sixty days pre-
ceding the date of a general or special
election in which such person is a candi-
date, the lowest unit charge of the station
for the same class and amount of time' for
the same period; and
(2) at any other time, the charges made
for comparable use of such station by other
users thereof.
* * * * *
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3
(d) Rules and regulations
The Commission shall prescribe appro-
priate rules and regulations to carry out the
provisions of this section.
2. Section 402(a) of Title 47, United States
Code, provides:
Any proceeding to enjoin, set aside, annul, or
suspend any order of the Commission under this
chapter (except those appealable under subsection
(b) of this section) shall be brought as provided by
and in the manner prescribed in Chapter 158 of
Title 28.
3. Section 2342 of Title 28, United States Code,
provides in part:
The court of appeals (other than the United
States Court of Appeals for the Federal Circuit)
has exclusive jurisdiction to enjoin, set aside,
suspend (in whole or in part) or to determine the
validity of (1) all final orders of the Federal Com-
munications Commission made reviewable by Sec-
tion 402(a) of title 47.
STATEMENT
1. The Communications Act of 1934, as amended, 47
U.S.C. 151 et seq., "established a comprehensive sys-
tem for the regulation of communication by wire and
radio," and "created a new agency, the Federal Com-
munications Commission," to carry out its underly-
ing policies. Scripps-Howard Radio, Inc. v. FCC,
316 U.S. 4, 6 (1942). Within that "comprehensive
scheme," both Congress and the FCC have paid spe-
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4
cial attention to broadcasts of political campaign
advertising, and in particular to problems of dis-
criminatory obstacles to such advertising. Section
315 of the Communications Act, 47 U.S.C. 315, is
addressed to those problems.
Section 315(a) (the "equal time" provision), which
was enacted as part of the original Communications
Act of 1934, provides that (with certain exceptions), if
a station permits a legally qualified candidate "to use
a broadcasting station," that station "shall afford
equal opportunities to all other such candidates for
that office in the use of such broadcasting station."
47 U.S.C. 315(a); see generally Farmers Educ. &
Coop. Union v. WDAY, Inc., 360 U.S. 525 (1959);
Kennedy for Pres. Comm. v. FCC, 636 F.2d 417 (D.C.
Cir. 1980). In 1952, Congress added Section 315(b),
which, as originally enacted, prohibited broadcasters
from charging candidates for federal, state, or local
office higher rates than those charged to other
advertisers "for comparable use of such station."
Pub. L. No. 82-554, 11, 66 Stat. 717. "This 'compar-
able use' provision was designed to protect candidates
from discriminatory rates." Hernstadt v. FCC, 677
F.2d 893, 895 (D.C. Cir. 1980) (footnotes omitted).
In 1972, Congress amended Section 315(b) (1958) of
the Communications Act to add, as Section 315(b)(1),
the "lowest unit charge" provision that is the subject
of this case. See Federal Election Campaign Act,
Pub. L. No. 92-225, 104, 86 Stat., 7. Section 315(b)(1)
provides that, during the 45 days before primary and
runoff elections and the 60 days before general and
special elections, broadcast stations must charge
legally qualified political candidates "the lowest unit
charge of the station for the same class and amount of
time for the same period." 47 U.S.C. 315(b)(1).
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5
Outside those specified periods, the "comparable use"
provision enacted in 1952 (and remodified as Section
315(b)(2)) continues to apply.
Since its enactment, the lowest unit charge rule
has been the focus of sustained regulatory attention.
The FCC has issued several interpretive rulings
respecting that rule in response to inquiries from
candidates and broadcasters. 1. It has adjudicated nu-
merous disputes between candidates and broadcasters
over political advertising charges. 2. It has ordered
rebates to candidates and has imposed fines on
broadcasters for some violations of Section 315(b). 3. It
has conducted a broad-based audit of the political
advertising charges of randomly selected broadcast
stations. 4. And it has periodically provided and
updated comprehensive guidance to candidates and
___________________(footnotes)
1 See, e.g., Community Broadcasting Co., 35 F.C.C.2d 663
(1972); Eugene T. Smith, 34 F.C.C.2d 622 (1972); KGWA Pub.
Broadcasting Serv., Inc., 34 F.C.C.2d 1103 (1972); Korral
Radio, Inc., 48 F.C.C.2d 531 (1974); Ken Jennison, 38 Rad. Reg.
2d (P & F) 1393 (1976); Radio Station WBGR, 36 Rad. Reg. 2d
(P & F) 388 (1976).
2 See, e.g., Holden E. Sanders v. Station WIXC, 52
F.C.C.2d 592 (1975); Turner Communications Corp., 36 Rad.
Reg. 2d (P & F) 537 (1976); James H. Doyle, 38 Rad. Reg. 2d
(P & F) 330 (1976); Midnight Sun Broadcasters, Inc., 40 Rad.
Reg. 2d (P & F) 660 (1977); Senator Wendell Anderson, 44 Rad.
Reg. 2d (P & F) 831 (1978); Warren J. Moity, Sr., 46 Rad. Reg.
2d (P & F) 399 (1979).
3 See, e.g., Southern Arkansas Radio Co., 5 F.C.C. Rcd 4643
(1990); David E. Henderson (Outlet Communications, Inc.), 5
F.C.C. Rcd 2835 (1990), aff'd, 7 F.C.C. Rcd 632 (1992); Alpha
Broadcasting Corp., 102 F.C.C.2d 18, 26 (1984). See also
Chronicle Publishing Co., 6 F.C.C. Rcd 7497, 7499 (1991).
4 Mass Media Bureau Report on Political Programming
Audit, 68 Rad. Reg. 2d (P & F) 113 (1990).
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6
broadcasters through, among other things, the issu-
ance of public notices 5. and a "Political Primer," 6. the
publication of frequently encountered "Questions and
Answers," 7. and the codification of political broad-
casting rules. 8.
The guidance provided by the FCC in its admin-
istrative proceedings has been detailed and far-
reaching. Because there is great variety in broad-
casters' advertising practices, the FCC has found
that it is necessary to examine those practices
closely to determine whether any particular rate
charged by a broadcast station is or is not the
station's lowest unit charge. See App., infra, 24a
(noting that broadcast advertising charges are "com-
plex and often arcane"). The FCC "has, in fact,
concluded that, in investigating alleged violations of
Section 315(b)j it will consider a great number of
factors, including (1) the rate offered to the station's
most favored advertiser, (2) classes of time offered by
the station, (3) weekly rotations of time offered to
___________________(footnotes)
5 Use of Broadcast and Cablecast Facilities By Candidates
for Public Office, 34 F.C.C.2d 510 (1972); Licensees and Cable
Operators Reminded of Lowest Unit Charge Obligations, 4
F.C.C. Rcd 3823 (1988).
6 Law of Political Broadcasting & Cablecasting, 69
F.C.C.2d 2209 (1978); The Law of Political Broadcasting and
Cablecasting: A Political Primer, 100 F.C.C.2d 1476 (1984)
(Political Primer).
7 Questions and Answers Relating to Political Program-
ming Law, 68 Rad. Reg. 2d (P & F) 188 (1990).
8 In re Codification of the Commission's Political Program-
ming Policies, Notice of Proposed Rulemaking, 6 F.C.C. Rcd
5707 (1991); Report and Order, 7 F.C.C. Rcd 678 (1991)
(Political Programming Policies Order), on reconsideration, 7
F.C.C. Rcd 4611 (1992) (Political Programming Policies Recon-
sideration Order).
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7
advertisers, (4) increases in rates during election
periods, including any increases that are the result of
"ordinary business practices," (5) calculation of
rebates, (6) package plans, (7) "bonus" advertising
spots, (8) "fire sale" last-minute discounts, (9) "make
good" spots for preempted advertising, and (10)
broadcasters' practices with respect to purportedly
"sold out" preemptible time, 9. Moreover, industry
practices and market conditions change frequently,
and the FCC has noted that "each day usually brings
at least one new question of interpretation." 10.
2. Before 1990, lowest unit charge standards were
promulgated and enforced exclusively by the FCC
(with the exception of one Texas statute that was
ultimately held to be preempted by Section 315(b)). 11.
Several courts had also ruled that the companion
"equal time" rule of Section 315(a) created no private
right of action for damages, and that the FCC had
exclusive authority to enforce the rule. 12. Beginning
in 1990, however, candidates for public office began
filing lawsuits against broadcasters in state and
federal courts, arguing either that the broadcasters
had violated Section 315(b) (which was said to have
created a private right of action) or, more commonly,
___________________(footnotes)
9 See Political Programming Policies Order, 7 F.C.C. Rcd
at 688-698; Political Programming Policies Reconsideration Or-
der, 7 F.C.C. Rcd at 4614-4620.
10 Political primer, 100 F.C.C.2d at 1478.
11 See KVUE, Inc. v. Moore, 709 F.2d 922 (5th Cir. 1983),
aff'd mem., 465 U.S. 1092 (1984).
12 See DeYoung v. Patton, 898 F.2d 628, 633-635 (8th Cir.
1950); Belluso v. Turner Communications Corp., 633 F.2d 393,
396-397 (5th Cir. 1980); Daly v. Columbia Broadcasting Sys.,
309 F.2d 83, 85-86 (7th Cir. 1962); Ackerman v. Columbia
Broadcasting Sys., 301 F. Supp. 628, 631 (S.D.N.Y. 1969).
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8
that the broadcasters had violated their contractual
obligations, enforceable understate law, to adhere to
the lowest unit charge rule. See App., infra, 88a-89a
(FCC's notice of intention to issue declaratory rul-
ing, discussing federal and state court lowest unit
charge litigation). In one of those cases, brought by
respondent Zell Miller, the federal district court
dismissed the complaint and held that the FCC had
exclusive authority to provide a remedy for violations
of Section 315(b), but in another case brought by
respondent William Dickinson, the district court held
that the lawsuit did not present a question arising
under federal law, and remanded it to the state courts,
where the case is still pending. Ibid.
Noting "the inconsistencies among these federal
and state court decisions and the likely proliferation
of similar suits in a number of jurisdictions," App.,
infra, 87a-88a, the FCC initiated a declaratory ruling
proceeding to address "whether its jurisdiction to
determine the lawfulness of political advertising
charges is exclusive. and whether federal and state
courts must refer the liability question to the FCC in
any case alleging that charges for political adver-
tising are excessive: id. at 88a. The FCC also asked
commenters to address whether. "its exclusive juris-
diction should extend beyond the basic liability
question and, if so, whether the Commission should
preempt any cause of action in any court in which an
alleged violation of Section 315(b) is an essential
element." Ibid. (footnote omitted).
3. The FCC subsequently issued a declaratory
ruling that "any state cause of action dependent on
any determination of the lowest unit charge under
Section 315(b) * * * is preempted by federal law,"
and that "[t]he sole forum for adjudicating such
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9
matters shall be [the FCC]." App., infra, 16a. In that
ruling, the FCC first concluded that "Congress by
implication" preempted state causes of action of which
alleged violations of Section 315(b) are an integral
part." Id. at 19a. It explained that private litigation
in courts around the country over the requirements
of Section 315(b) would conflict with Congress's
establishment of the FCC as the "centralizing
authority" overseeing the "unified and comprehensive
regulatory system" governing interstate communi-
cations, and in particular political broadcasting. ld.
at 20a. It also found that Section 315 "itself embodies
Congress' mandate that uniform federal policies gov-
ern political broadcasting rates," since Section 315(d)
directs the FCC to "make rules and regulations to
carry [Section 315] into effect." App., infra, 20a.
That "narrowly focused directive; the FCC observed,
is "something more than the usual delegation of rule-
making authority," and "amounts to a congressional
direction to the FCC to recognize the importance of
this particular section of the statute and prescribe
separate rules and regulations to deal with the multi-
tudinous situations that arise in applying it to all
federal state and local candidates for office through-
out the nation." Ibid. (quoting Kay v. FCC, 443 F.2d
638, 643-644 (D.C. Cir. 1970)) (emphasis omitted).
The FCC also concluded that it should exercise its
own authority to preempt state law claims based on
violations of Section 315(b), whether or not Con-
gress expressly or by implication had preempted such
claims. App., infra, 21a-25a. In reaching that
conclusion, it noted that, in City of New York v. FCC,
486 U.S. 57 (1988), and Fidelity Federal Savings &
Loan Association v. de la Cuesta, 458 U.S. 141 (1982),
this Court upheld the authority of federal admin-
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10
istrative agencies (specifically including the FCC) to
preempt state regulation, as long as the decision to
preempt represents "a reasonable accommodation of
conflicting policies that were committed to the
agency's care." App., infra, 21a.
Addressing whether preemption would be an appro-
priate exercise of its regulatory authority, the FCC
stated that preemption of state law with respect to
political broadcasting charges "is necessary to allow
the Commission to 'achieve its purposes' by develop-
ing uniform standards for interpreting and enforcing
Section 315(b)." App., infra, 22a. Absent preemption,
the FCC found, "[r]ulings by courts in numerous
jurisdictions around the country almost certainly
would produce varying and possibly conflicting deter-
minations" that "would leave both candidates and
broadcasters unsure of their respective rights and
responsibilities." Id. at 22a-23a. Moreover, the FCC
pointed out, lawsuits in various states would disserve
Congress's objective of removing obstacles to polit-
ical broadcasting, because it would be "difficult, if not
perilous, for broadcasters who serve more than one
jurisdiction to provide various candidates prompt,
authoritative quotes for the lowest unit charge
available to them" (id. at 23a), and the prospect of
such lawsuits around the country "might encourage
some stations simply to refuse to accept political
advertisements" (id. at 24a). The FCC therefore
"f[oun]d that state court adjudication of claims of
which alleged violations of Section 315(b) are an
integral part would 'conflict with the basic objectives
of federal policy' with respect to political adver-
tising." Id. at 23a (footnote omitted).
The FCC also found it "now clear" that the consid-
erations supporting preemption of substantive state
---------------------------------------- Page Break ----------------------------------------
11
law required preemption of judicial remedies as well.
App., infra, 25a. In the FCC's view, "[s]tate efforts to
provide their own remedies for a violation of the
lowest unit charge requirement * * * would
interfere with uniform enforcement of the Act by the
Commission just as surely as would state determina-
tions of the initial question of whether Section 315(b)
has been violated." Id. at 25a-26a. It pointed to this
Court's similar conclusion in Farmers Educational
& Cooperative Union, supra, in which the Court held
that Section 315(a) preempts libel actions against
broadcast licensees for the content of paid political
advertisements, and concluded that a judicial remedy
against broadcasters for libel in such situations
would "hamper the Congressional plan to develop
broadcasting as a political outlet." App., infra, 26a. 13.
4. The court of appeals dismissed a petition for
review of the declaratory ruling brought by a group of
political candidates. App., infra, 1a-15a. After re-
viewing the proceedings before the FCC, the court
considered its own jurisdiction to review the declara-
tory ruling under 47 U.S.C. 402(a) and 28 U.S.C.
2342(1), which, taken together, vest jurisdiction over.
challenges to most FCC orders exclusively in the
courts of appeals. See id. at 9a; p. 3, supra. The Court
___________________(footnotes)
13 In the declaratory ruling, the FCC also established new
procedures for adjudication of administrative complaints based
on alleged violations of Section 315(b). App., infra, 27a-29a. It
subsequently denied petitions for reconsideration (id. at 49a-
67a) and affirmed "in its entirety the holding of the Declar-
atory Ruling" (id. at 50a). In particular, it reaffirmed that,
"regardless of whether Congress expressly or by implication
preempted state law claims based upon alleged violations of
Section 315(b)," it had properly exercised its "independent
authority to preempt state causes of action." Id. at 62a,
---------------------------------------- Page Break ----------------------------------------
12
remarked that "it is, necessary to characterize.
appropriately the FCC action [under review]" (App.,
infra, 9a-10a), and stated:
The Commission's declaratory ruling-that Con-
gress (or the Commission itself) has preempted
the jurisdiction of state courts and federal
district courts, in diversity cases, when the
candidate claims that the broadcaster's rates
exceeded the lowest unit charge-is not a
regulation promulgated pursuant to section
315(d). * * * [T]he, ruling does not define
statutory terms, dictate the use of certain indus-
try practices, or prescribe appropriate methods
for calculating the lowest unit charge. Further-
more, the declaratory ruling is not an adjudi-
cation of a pending case involving a dispute
between a candidate and a broadcast station
licensee. It is not a decision, a letter of admoni-
tion, or an order levying a penalty of forfeiture, a
loss of operating authority, or a refund to a
candidate.
Id. at 10a. The court then remarked:
Because it is axiomatic that Congress has not
delegated, and could not delegate, the power to
any agency to oust state courts and federal dis-
trict courts of subject matter jurisdiction, the
FCC's declaratory ruling amounts to an agency
opinion-a pronouncement interpreting the Com-
munications Act to the effect that Congress im-
pliedly abolished state and federal court jurisdic-
tion over lowest unit charge violations.
Ibid. The court cited no authority for its "axiomatic"
proposition. It did state in a footnote that the FCC's
---------------------------------------- Page Break ----------------------------------------
13
action was "thus distinguishable from prior cases
involving the preemptive effect of the Commu-
nications Act in other contexts." Ibid. n.4 (citing,
inter alia, City of New York v. FCC, 486 U.S. 57
(1988)).
Having thus "characterize[d]" the FCC's action,
the court of appeals concluded that it lacked juris-
diction over the petition for review, because (it be-
lieved) there was no case or controversy present. The
court stated that, "[e]ssentially, [the candidates] ask
this court to declare whether, at some future date, a
candidate may bring a breach of contract action in
state court contending that a broadcaster's rates
exceeded the lowest unit charge and seeking recovery
of the overcharge." App., infra, 12a. It also remarked
that the only question presented in such a case would
be "whether Congress has foreclosed the power of the
state court[s]" to entertain suits by candidates
against broadcasters. Id. at 12a-13a. But, disre-
garding the fact that at least one of the candidates
before the court had (and has) just such a lawsuit
against a broadcaster pending in Alabama state court
(id. at 6a n.2), the court concluded that, "[b]y asking
this court to decide what another court should do in a
future case, [the candidates] are posing a hypothetical
question, the answer to which would be an advisory
opinion." Id. at 13a.
Although the court therefore stated that it would
refuse to rule on the petition for review, it also
remarked that its "refusal to answer the question
[the candidates] pose will not preclude them from
obtaining an answer. Any of them who have been or
may in the future be overcharged by a broadcaster
while running for public office may seek judicial
relief." App., infra, 15a. But, repeating its conclu-
---------------------------------------- Page Break ----------------------------------------
14
sion that "no case controversy is presented," the
Court stated, "we DISMISS the petition for review."
Ibid.
REASONS FOR GRANTING THE PETITION
In its declaratory riding, the FCC concluded, in
light of its extensive experience, that predictable and
uniform enforcement of the lowest unit charge rule of
Section 315(b) is threatened by inconsistent and
conflicting judicial interpretations of that require-
ment. It therefore held the administrative procedure
at the FCC for adjudication of Section 315(b) com-
plaints to be exclusive, with the results of its adjudi-
cation of those complaints subject, to judicial review
in the federal courts of appeals, pursuant to 28 U.S.C.
2342(1) and 47 U.S.C. 402(a). The court of appeals
nonetheless held the it was "axiomatic" that Con-
gress had no power to authorize, and had not author-
ized, the FCC to establish such,. an exclusive admin-
istrative mechanism. And, insofar as the FCC had
based its preemption ruling on an interpretation of
the statute, the court characterized" the declaratory
ruling as an action without substantive effect, a mere
expression of opinion about the reach of a statute
without regulatory significance.
The court of appeals' decision encourages candi-
dates to pursue remedies against broadcasters direct-
ly in state and federal courts around the country-
precisely the situation that the FCC's declaratory
ruling seeks to avoid. Its decision has also created
considerable confusion about the basis of the FCC's
declaratory ruling. Certiorari is warranted in this
case to correct the court of appeals' serious errors on
important questions of law and to prevent the sig-
nificant and adverse practical consequences for
---------------------------------------- Page Break ----------------------------------------
15
political broadcasting that necessarily flow from
those errors.
1. a. The court of appeals' characterization of the
FCC's declaratory ruling as a mere expression of
opinion about the preemptive effect of Section 315(b)
was premised on its conclusion that, insofar as the
FCC itself (as opposed to Congress) had purported to
preempt judicial jurisdiction over lowest unit charge
claims, that action was a nullity. The court of appeals
emphasized that "Congress has not delegated, and
could not delegate, the power to any agency to oust
state courts and federal district courts of subject
matter jurisdiction." App., infra, 10a. That holding
conflicts with this Court's precedents (relied on by
the FCC in the declaratory ruling) holding that "a
federal agency acting within * * * its con-
gressionally delegated authority may pre-empt state
regulation and hence render unenforceable state or
local laws that are not otherwise inconsistent with
federal law." City of New York v. FCC, 486 U.S. 57,
63-64 (1988) (internal quotations omitted); accord
Fidelity Federal Savings & Loan Ass'n v. de la
Cuesta, 458 U.S. 141, 153-154 (1982).
There can be no doubt that Congress has the auth-
ority, under the Supremacy Clause of the Consti-
tution, U.S. Const., Art. VI, Cl. 2, to preempt state
law. And this Court has specifically upheld con-
gressional authority under the Communications Act
to preempt state law in the political broadcasting
context. See Farmers Educ. & Coop. Union v.
WDAY, Inc., 360 U.S. 525 (1959) (holding that the
"equal time" provision of Section 315(a) preempts
libel suits against stations for defamatory statements
made by candidates); KVUE, Inc. v. Moore, 709 F.2d
922 (5th Cir. 1983), aff'd mem., 465 U.S. 1092 (1984). It
---------------------------------------- Page Break ----------------------------------------
16
also is well established that Congress may "confide
primary interpretation and application of [federal
statutory] rules to a specific and specially constituted
tribunal," if Congress "consider[s] that centralized
administration of specially designated procedures [is]
necessary to obtain uniform application of its
substantive rules and to avoid th[o]se diversities and
conflicts likely to result from a variety of local
procedures and attitudes." Garner v. Teamsters
Local Union No. 776, 346 U.S. 485, 490 (1953). As the
Court there observed, "[a] multiplicity of tribunals
and a diversity of procedures are quite apt to produce
incompatible or conflicting adjudications as are
different rules of substantive law." Id. at 490-491.
See also Mississippi Power & Light Co. v. Moore, 487
U.S. 354, 375 (1988). Congress, therefore, may pre-
empt state and federal trial courts from exercising
jurisdiction over controversies involving federal sta-
tutory questions, and may give a federal adminis-
trative agency exclusive authority to decide such
questions, at least in the first instance and subject to
judicial review in the federal system.
A federal agency acting pursuant to its delegated
powers has similar authority to conclude that the
statutory policies entrusted to its administration
require that certain controversies be resolved in the
first instance exclusively by the agency. "Federal
regulations have no less pre-emptive effect than
federal statutes." Fidelity Federal 458 U.S. at 153.
See also City of New York, 486 U.S. at 63-64;
Louisiana Public Service Comm'n v. FCC', 476 U.S.
355, 369 (1986); Capital Cities Cable, Inc. v. Crisp, 46'7
U.S. 691, 700-705 (1984). Where Congress has direc-
ted an administrator to exercise his discretion, his
judgments are subject to judicial review only to
---------------------------------------- Page Break ----------------------------------------
17
determine whether he has exceeded his statutory
authority or acted arbitrarily." Fidelity Federal, 458
U.S. at 153-154. Under that standard, if the agency's
decision to preempt "represents a reasonable accom-
modation of conflicting policies that were committed
to the agency's care by statute," the courts "should
not disturb it unless it appears from the statute or its
legislative history that the accommodation is not one
that Congress would have sanctioned." City of New
York, 486 U.S. at 64; see also Capital Cities Cable,
467 U.S. at 700.
The court of appeals' categorical holding (App.,
infra, 10a) that "Congress has not delegated, and
could not delegate, the power" to the FCC to preempt
judicial proceedings over state law claims requiring a
determination of the lowest unit charge is untenable
in light of that precedent. The rule established by
this Court's decisions in Fidelity Federal and City of
New York, upholding federal agencies' authority to
preempt state regulation, applies to all state law,
including judge-made law. 14. Congress therefore does
have the power to delegate to the FCC the authority
to preempt state regulatory authority over political
broadcasting, including the authority to impose reme-
___________________(footnotes)
14 Indeed, Fidelity Federal involved the Federal Home Loan
Bank Board's preemption of the California Supreme Court's
"Wellenkamp rule, " in which that court, held that due-on-sale
clauses in residential mortgages violated California's prohibi-
tion against unreasonable restraints on alienation of property.
See 458 U.S. at 144, 148-149. The Wellenkamp decision inter-
preted a rule of property law codified in a California statute,
but this Court understood the question presented in Fidelity
Federal to involve the Board's authority to "displace restric-
tions imposed by the California Supreme Court on the exercise
of [due-on-sale] clauses." Id. at 144.
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18
dies for violations of Section 315(b). And, in analysis
that the court of appeals never attempted to engage,
the FCC demonstrated that Congress, in fact, had
delegated such authority to it. See App., infra, 20a-
27a; pp. 9-10, supra.
b. The foregoing erroneous premise led to the
court of appeals' further error in concluding that the
FCC's declaratory ruling was a mere "opinion" be-
yond the court's jurisdiction to review. The FCC's
declaratory ruling was designed to have the binding
effect of preempting state-law claims; it was issued to
settle a previously uncertain question of law, and to
establish definitively that the FCC has exclusive
authority to adjudicate controversies arising under
Section 315(b).
Even though the FCC did not announce its inter-
pretation in the course of an adjudication of a con-
troversy between two parties, legal consequences
nonetheless flow from its interpretation of Section
315(%). See Pennsylvania R.R. v. United States, 363
U.S. 202, 205 (1960); Port of Boston Marine Terminal
Ass'n v. Rederiaktie Bolaget Transatlantic, 400 U.S.
62, 71 (1970); see also United States v. Storer
Broadcasting Co., 351 U.S. 192, 198-200 (1956);
Weinberger v. Hynson, Westcott & Dunning, 412
U.S. 609, 624-625 (1973). The agency arrived at an
interpretation of Section 315(b) that must be applied
by state and federal courts under well settled
principles of deference to an agency's reasonable
interpretation of its governing statute. See Chevron
U.S.A. Inc. v. Natural Resources Defense Council,
467 U.S. 837 (1984). 15. Thus, far from being a mere
___________________(footnotes)
15 Therefore, even if a candidate did sue a broadcaster in
state court, that court would still have to consider whether its
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19
expression of opinion, the FCC's interpretive ruling
regarding its governing statute "changes the legal
landscape." Health Insurance Ass'n of America v.
Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994), cert. denied,
115 S. Ct. 1095 (1995).
Other courts of appeals have, accordingly, reviewed
similar FCC declaratory rulings interpreting the
Communications Act, including declaratory rulings
with preemptive effect. See, e.g., Chisholm v. FCC,
538 F.2d 349, 351, 353-355 (D.C. Cir.) (reviewing FCC
declaratory ruling interpreting "equal time" provi-
sion of Section 315(a)), cert. denied, 429 U.S. 890
(1976); Telecommunications Research and Action
Center v. FCC, 26 F.3d 185, 187 (D.C. Cir. 1994)
(same); see also North Carolina Utils. Comm'n v.
FCC, 537 F.2d 787, 790-791 & n.2 (4th Cir.), cert.
denied, 429 U.S. 1027 (1976); New York State Comm'n
on Cable Television v. FCC, 749 F.2d 804, 815 (D.C.
Cir. 1984); New York State Comm'n on Cable
Television v. FCC, 669 F.2d 58, 62 & n.9 (2d Cir. 1982).
In doing so, those reviewing courts have also properly
fulfilled their obligation to observe the limited time
for review of FCC orders that Congress established
in 28 U.S.C. 2344, which requires that petitions for
review of FCC orders be filed within 60 days after
entry of the order. The court of appeals' refusal to
follow that course in this case cannot be reconciled
with those decisions in other circuits.
2. The court of appeals' decision will have signifi-
cant adverse consequences. First, the court of
___________________(footnotes)
jurisdiction over the suit had been ousted by the declaratory
ruling. Under the Supremacy Clause, the state court would be
obliged to give effect to the FCC's interpretation of Section
315(b) and its declaratory ruling, and to dismiss the case.
---------------------------------------- Page Break ----------------------------------------
20
appeals' conclusion that the FCC lacks authority to
preempt judicial jurisdiction over state-law com-
plaints, and its characterization of the FCC's decla-
ratory ruling as a mere expression of opinion without
legal consequence, undermine the FCC's ability to
bring consistency and uniformity to interpretations
of Section 315(b). The court of appeals has effectively
invited candidates to continue to file lawsuits against
broadcasters in state and federal trial courts around
the nation. That is the very result that the FCC had
sought to avoid by its declaratory ruling, in which it
stressed the potential for uncertainty for both
broadcasters and candidates that would be created by
inconsistent judicial rulings. In the FCC's judgment,
that inconsistency and uncertainty threaten to deter
broadcasters from making substantial amounts of
advertising time available to candidates. See App.,
infra, 24a. 16. That consequence would be directly
contrary to Congress's objective in Section 315 of
reducing barriers to broadcast advertising by polit-
ical candidates. See id. at 41a (citing S. Rep. No. 96,
92d Cong., 1st Sess. 20 (1972)).
Second, state and federal courts hearing lawsuits
against broadcasters will have to review the validity
of the FCC's interpretation of Section 315(b), That
result is also contrary to Congress's policy, ex-
pressed in 28 U.S.C. 2342(1) and 47 U.S.C, 402(a), of
placing judicial review of FCC orders (including
declaratory rulings interpreting the Communications
Act) exclusively in the federal courts of appeals. See
___________________(footnotes)
16 Section 312(a)(7) of the Communications Act affords a
right of "reasonable access" to broadcast facilities to candidates
for federal office. 47 U.S.C. 312(a)(7). The Act creates no
access rights for other candidates.
---------------------------------------- Page Break ----------------------------------------
21
generally FCC v. ITT World Communications, Inc.,
466 U.S. 463, 468 (1984). The court of appeals'
misconstruction of the FCC's declaratory ruling as a
mere expression of opinion may therefore have a
serious adverse impact on the ability of federal agen-
cies to issue definitive decisions on the preemptive
effect of federal law, since those decisions will be
subjected to second-guessing in state and federal
courts around the country, rather than reviewed
pursuant to the specific path for judicial review
established by Congress. 17.
The court of appeals also east doubt on the FCC's
authority to proceed by way of declaratory ruling,
rather than rulemaking or adjudication, to conclude
that state law is preempted under Section 315(b). The
court of appeals evidently believed that the FCC's
___________________(footnotes)
17 One case demonstrating that potential effect is currently
pending in the Ninth Circuit. In Wilson v. A. H. Belo Corp.,
No. 92-16040 (9th Cir.), the federal district court dismissed the
claims of several political candidates, premised upon Section
315(b) and state common law, that broadcasters had charged
them rates in excess of the lowest unit charge. The district
court concluded that it lacked subject matter jurisdiction over
the complaints because a decision on the merits of the
candidates' claims would effectively require the court to
review the validity of the FCC's declaratory order.
Accordingly, the district court concluded that the candidates'
sole means of reviewing the declaratory ruling was by means of
a petition for review filed in the court of appeals. Wilson v.
A.H. Belo Corp., Order, No. Civ. S-91-1206 (LKK) (E.D. Cal.
Apr. 27, 1992). On appeal (which was stayed pending the
Eleventh Circuit's decision in this case), the candidates are
contending that the district court erred in dismissing the case,
because the FCC's declaratory ruling is not a reviewable order
and, thus, the lawsuit creates no conflict with the statutory
provisions vesting review of FCC orders exclusively in the
courts of appeals.
---------------------------------------- Page Break ----------------------------------------
22
interpretation of Section 315(b) would have been on
sounder footing had it been formally promulgated as a
regulation. See App., infra, 10a. But nothing in the
Communications Act or in the Administrative
Procedure Act requires the FCC to announce its
interpretation of Section 315(b) in a regulation or an
adjudication of a particular controversy rather than a
declaratory ruling. To the contrary, the Adminis-
trative Procedure Act expressly states that a
declaratory order issued by an agency "to terminate a
controversy or remove uncertainty" has the same
"effect as in the case of other orders." 5 U.S.C.
554(e). 18. And, as this Court has stated, courts "may
not impose methods of regulation upon the discretion
of the Commission for purposes of judicial review, the
validity of [an agency] order is determined by the
result reached not the method employed.'" Permian
Basin Area Rate Cases, 390 US. 747, 775 (1968); see
also Storer Broadcasting, 351 U.S. at 202-205;
Hynson, Westcott & Dunning, 41.2 U.S. at 609.
Because the court of appeals' decision has cast doubt
on the authority of federal agencies to issue declar-
atory rulings with substantive effect, that decision
warrants review by this Court.
3. Although the court of appeals held that the FCC
has no authority to provide, by declaratory ruling,
that state-court jurisdiction over Section 315(b)
complaints is preempted, it also stated that it was
presented with only a hypothetical dispute over
Congress's authority to preempt state jurisdiction.
___________________(footnotes)
18 The declaratory ruling was, in any event, issued after the
notice and comment anticipated by the Administrative Proced-
ure Act. See App., infra, 87a (notice establishing comment
period); id. at 18-19a, 23a, 25a (discussion of filed comments).
---------------------------------------- Page Break ----------------------------------------
23
The court's conclusion that no case or controversy
was presented as to Congress's power, however, was
based squarely on its "characteriz[ation]" of the
FCC's declaratory ruling as a mere expression of
opinion, without legal consequence. Moreover, it was
able to reach that conclusion only by first holding
that Congress cannot delegate preemptive authority
to the FCC.
If the issue of the validity of the FCC's preemption
ruling were to arise again in the Eleventh Circuit,
that court would presumably be bound, under prin-
ciples of stare decisis, by the panel's conclusion that
the FCC could not preempt judicial jurisdiction over
complaints arising under Section 315(b). A subse-
quent panel would thus be limited to considering
whether Congress itself had preempted judicial
jurisdiction. See App., infra, 12a (noting that con-
gressional intent would be "[t]he question facing the
court" when a live controversy was presented). But
the FCC expressly concluded that it should exercise
its own delegated authority of preemption, whether or
not Congress had implicitly concluded that judicial
jurisdiction over state-law complaints should be
preempted. App., infra, 21a.
In effect, therefore, the court of appeals granted the
candidates' petition for review in part (by holding
invalid that part of the FCC's preemption ruling in
which the FCC stated that it had preempted state law
under authority delegated to it by Congress), and
dismissed the petition in part (insofar as the petition
challenged the FCC's conclusion that Congress itself
had preempted state law). That split decision by the
court of appeals, which should not be obscured by the
fact that the court chose to articulate its judgment
merely as a dismissal of the petition (see App., infra,
---------------------------------------- Page Break ----------------------------------------
24
which the FCC stated that it had preempted state law
under authority delegated to it by Congress), and
dismissed the petition in part (insofar as the petition
challenged the FCC's conclusion that Congress itself
had preempted state law). That split decision by the
court of appeals, which should not be obscured by the
fact that the court chose to articulate its judgment
merely as a dismissal of the petition (see App., infra,
15a), is in our view insupportable; and it will cause
considerable confusion in subsequent proceedings
about the basis and validity of the FCC's declaratory
ruling. 19. That confusion provides an additional reason
why review by this Court is warranted.
___________________(footnotes)
19 The court of appeals also erred as a factual matter in
concluding that no case or controversy was presented. Before
the court was at least one candidate, William L. Dickinson, with
a live controversy against a broadcaster, Cosmos Broadcasting
Co., also a party in the court of appeals. The FCC's declaratory
ruling had an immediate effect on Dickinson's lawsuit against
Cosmos in the Alabama state courts, and Dickinson had standing
to seek judicial review of the declaratory ruling in the court of
appeals. We can discern no basis for distinguishing between
Dickinson's standing to challenge the FCC's decision to preempt
state jurisdiction under. its own initiative, and his standing to
challenge the FCC's conclusion that Congress itself had
preempted state jurisdiction in Section 315(b). We also discern
no basis for the court of appeals' evident conclusion that it had
jurisdiction to consider the first challenge but not the second.
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25
CONCLUSION
The petition for a writ of certiorari should be
granted.
WILLIAM E. KENNARD
General Counsel
CHRISTOPHER J. WRIGHT
Deputy General Counsel
DANIEL M. ARMSTRONG
Associate General Counsel
LAURENCE N. BOURNE
Attorney
Federal Communications
Commission
DREW S. DAYS, III
Solicitor General
LAWRENCE G. WALLACE
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor
General
JANUARY 1996
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APPENDIX A
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
No. 92-8777
ZELL MILLER, ZELL MILLER FOR GOVERNOR, PIERRE
HOWARD, GEORGIANS FOR HOWARD '90, JOHNNY
ISAKSON, JOHNNY ISAKSON FOR GOVERNOR, ANDREW-
YOUNG, YOUNG WORKING FOR GEORGIA, LAUREN
MCDONALD, LAUREN MCDONALD FOR GOVERNOR,
ROY BARNES, ROY BARNES FOR GOVERNOR, TIM
RYLES, TIM RYLES FOR INSURANCE COMMISSIONER,
WARREN EVANS, WARREN EVANS ELECTION
COMMITTEE, WILLIAM L. DICKINSON, SECOND DISTRICT
CAMPAIGN COMMITTEE, WILLIAM J. CABANISS,
FRIENDS OF BILL CABANISS COMMITTEE, SPENCER T.
BACHUS, III, BACHUS FOR ATTORNEY GENERAL
COMMITTEE, JOHN TEAGUE, JAMES E. FOLSOM, JR.,
JIM FOLSOM, JR., FOR LIEUTENANT GOVERNOR
COMMITTEE, FOB JAMES, FOB JAMES FOR
GOVERNOR COMMITTEE, KENNETH D. WALLIS,
ALABAMIANS FOR KEN WALLIS COMMITTEE, GEORGE
D.H. MCMILLAN, JR., THE MCMILLAN COMMITTEE,
GEORGE WALLACE, JR., WALLACE FOR TREASURER
COMMITTEE, CHARLES A. GRADDICK, GRADDICK FOR
GOVERNOR COMMITTEE, WILLIAM J. BAXLEY, FRIENDS
OF BILL BAXLEY, PAUL HUBBERT, RICHARD SHELBY,
DON SIEGELMAN, JIMMY SULLIVAN, SONNY HORNSBY,
FRIENDS OF E.C. SONNY HORNSBY, MARK KENNEDY,
JUDGE MARK KENNEDY FOR SUPREME COURT AND
FRIENDS OF JUDGE MARK KENNEDY, CANDIDATES
FOR PUBLIC OFFICE IN GEORGIA AND ALABAMA AND
THEIR RESPECTIVE CAMPAIGN COMMITTEES,
PETITIONERS,
1a
---------------------------------------- Page Break ----------------------------------------
2a
v.
FEDERAL COMMUNICATIONS COMMISSION,
RESPONDENT, CAPITAL CITIES/ABC, INC.,
CHRIS-CRAFT INDUSTRIES, INC., THE TIMES MIRROR
COMPANY, AMERICAN FAMILY BROADCAST GROUP,
INC., ALLBRITTON COMMUNICATIONS COMPANY, CBS,
INC., CHRONICLE PUBLISHING Co., FOX TELEVISION
STATIONS, INC., GILLETT BROADCASTING OF
CALIFORNIA, INC., GILLETT COMMUNICATIONS OF
SAN DIEGO, INC., GREAT AMERICAN TELEVISION AND
RADIO COMPANY, INC., KELLY BROADCASTING
COMPANY, KELLY TELEVISION COMPANY, LIN
TELEVISION CORPORATION, MCGRAW-HILL
BROADCASTING COMPANY, INC., MIDWEST TELEVISION,
INC., NATIONAL BROADCASTING COMPANY, INC., THE
NEW YORK TIMES COMPANY, POST-NEWSWEEK
STATIONS, INC., THE PROVIDENCE JOURNAL
COMPANY, THE SPARTAN BROADCASTING COMPANY,
TRIBUNE BROADCASTING COMPANY, WESTINGHOUSE
BROADCASTING COMPANY, INC., WKRG-TV, INC.,
WTVT, INC., MEREDITH CORPORATION, A.H. BELO
CORPORATION, COSMOS BROADCASTING CORPORATION,
COX ENTERPRISES, INC., NATIONAL ASSOCIATION OF
BROADCASTERS (NAB), INTERVENERS.
[Filed: Sept. 29, 1995]
Before: TJOFLAT, Chief Judge, KRAVITCH,
Circuit Judge, and CLARK, Senior Circuit Judge.
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3a
TJOFLAT, Chief Judge:
This case involves a challenge to the Federal Com-
munications Commission's (the "FCC" or "Commis-
sion") interpretation of section 315(b) of the Commun-
ications Act of 1934, 47 U.S.C. 315(b), which estab-
lishes a limit on the amount that a broadcast station
may charge a political candidate for campaign adver-
tisements-the lowest unit charge. Petitioners,
twenty-five candidates for various public offices in
Georgia and Alabama along with their campaign com-
mittees, seek review of a declaratory ruling by the
FCC concluding that federal law preempts all state
causes of action that require, as a condition of gran-
ting relief, a determination of the lowest unit charge
under section 315(b) and that the FCC is the exclu-
sive forum for adjudicating section 315(b) liability
determinations. The FCC and the United States as
respondents, joined by a group of broadcast station
licensees, their parent corporations, and a national
association representing broadcasters as interveners,
defend the issuance of the declaratory ruling as
within the agency's delegated powers. We conclude
that the issue presented by petitioners constitutes a
hypothetical question rather than an actual case or
controversy. Based on the constitutional prohibition
against advisory opinions, we cannot decide this
hypothetical question.
I.
A.
Section 315 of the Communications Act establishes
certain requirements governing broadcast station
licensees' treatment of candidates for public office.
Section 315(a) requires that, subject to enumerated
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4a
exceptions, licensees provide equal opportunities to
all legally qualified candidates for a particular public
office and prohibits censorship of candidate broad-
casts. 47 U.S.C. 315(a). The provision at issue in
this case, section 315(b), regulates broadcast media
rates as follows:
The charges made for the use of any broad-
casting station by any person who is a legally
qualified candidate for any public office in connec-
tion with his campaign for nomination for elec-
tion, or election to such office shall not exceed-
(1) during the forty-five days preceding the date
of a primary or primary runoff election and
during the sixty days preceding the date of a
general or special election in which such per-
son is a candidate, the lowest unit charge of the
station for the same class and amount of time
for the same period; and
(2) at any other time, the charges made for
comparable use of such station by other users
thereof.
Id. 315(b). Section 315(b)(1) is commonly known as
the "lowest unit charge" provision. Section 315(c)
defines relevant terms, and section 315(d) states that
"[t]he Commission Shall prescribe appropriate rules
and regulations to carry out the provisions of this
section." Id. 315(c), (d).
The comparable use requirement of section 315(b)
was enacted as part of the Communications Act
Amendments of 1952," Pub.L. No. 82-554, 11, 66 Stat.
711, 717 (codified as amended at 47 U.S.C. 315(b)(2)),
to prevent broadcast licensees from charging political
candidates higher rates than those charged to com-
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5a
mercial advertisers. 1. S.Rep. No. 96, 92d Cong., 2d
Sess. 22 (1971), reprinted in 1972 U.S.C.C.A.N. 1773,
1775. The lowest unit charge provision was added by
the Federal Election Campaign Act (FECA) of 1971,
Pub.L. No. 92-225, 103(a)(1), 86 Stat. 3, 4 (1972)
(codified as amended at 47 U.S.C. 315(b)(1)), which
had the dual purpose of reducing the costs of cam-
paigns and increasing candidates' access to the broad-
cast media. S.Rep. No. 96, at 20, reprinted in 1972
U.S.C.C.A.N. at 1774.
B.
Since shortly after the enactment of the lowest
unit charge provision, the FCC has promulgated var-
ious regulations regarding the determination of the
lowest unit charge, including two "political primers"
dealing with all political programming requirements
as well as notices dealing exclusively with section
315(b)(1). See, e.g., Use of Broadcast and Cablecast
Facilities by Candidates for Public Office, 34
F.C.C.2d 510 (1972); The Law of Political Broad-
casting and Cablecasting, 69 F.C.C.2d 2209 (1978);
Political Primer 1984, 100 F.C.C.2d 1476 (1984);
Licensees and Cable Operators Reminded of Lowest
Unit Charge Obligations, 4 F.C.C.R. 3823 (1988).
These FCC issuances describe broadcast station li-
censees' obligations under section 315(b), dictate how
those obligations affect certain advertisement sales
practices in the broadcast industry, and illustrate the
appropriate determination of the lowest unit charge.
___________________(footnotes)
1 Although the FCC's declaratory ruling focuses almost
exclusively on the lowest unit charge provision of 315(b)(1)
rather than on the comparable use requirement of 315(b)(2),
we note that the rationale underlying the ruling would also
apply in the comparable use context.
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6a
The FCC codified its political programming policies
in a separate report and order, which was adopted
contemporaneously with the ruling at issue in this
case. See Codification of the Commission's Political
Programming Policies, 7 F.C.C.R. 678 (1991); see also
Codification of the Commission's Political Program-
ming Policies, 7 F.C.C.R. 4611 (1992) (memorandum
opinion and order on reconsideration).
On October 10, 1991, the FCC released a public
notice stating that "[t]he Commission is considering
issuing on its own motion a declaratory ruling con-
firming its earlier conclusion that it has exclusive
jurisdiction to determine questions of liability for
violations of Section 315(b) of the Communications
Act." Notice of Intention to Issue Declaratory
Ruling With Respect to Exclusive Authority of FCC
to Determine Whether Broadcasters Have Violated
Lowest Unit Charge Requirement of Section 315(b),
6 F.C.C.R. 5954 (1991). The notice also indicated that
the Commission was considering "preempt[ing] any
cause of action in which an alleged violation of
Section 315(b) is an essential element." Id. As the
impetus for the FCC's action, the notice cited
inconsistent decisions in state and federal court
litigation 2. brought by candidates alleging over-
___________________(footnotes)
2 The FCC cited the following two decisions from federal
district courts as examples of inconsistent results: Zell Miller
for Governor v. Pacific & Southern Co., No. 1:91-CV-267-RLV
(N.D.Ga. June 4, 1991) (granting defendant broadcaster's mo-
tion to dismiss after holding that plaintiffs had no implied right
of action under 315(b)), vacated as moot, No. 91-8561 (11th
Cir. Dec. 28, 1992); and Dickinson v. Cosmos Broadcasting Co.,
No. 91-T-072-N (M.D.Ala. Apr. 1, 1991) (remanding the case to
the state court after concluding that there was no federal
question at issue).
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7a
charging by broadcast stations. The Commission
commented that "[t]his exclusive jurisdiction over
Section 315(b) liability determinations, moreover,
must be recognized by both federal and state courts."
Id. at 5955 n. 7 (emphasis added). The FCC requested
comments as to whether its jurisdiction over section
315(b) is exclusive and whether the Commission
should declare that all causes of action based on
section 315(b) violations are preempted. Id. at 5954.
The FCC followed this notice with a declaratory
ruling adopted December 12, 1991, which stated:
By this ruling the Federal Communications
Commission declares that any state cause of ac-
tion dependent on any determination of the lowest
unit charge under Section 315(b) of the Commun-
ications Act, or of some other duty arising under
that subsection, is preempted by federal law. The
sole forum for adjudicating such matters shall be
this Commission.
Exclusive Jurisdiction With Respect to Potential
Violations of the Lowest Unit Charge Requirements
of Section 315(b) of the Communications Act of 1934,
as amended, 6 F.C.C.R. 7511 (1991). In addition, the
FCC announced that state causes of action based on
section 315(b) violations filed in federal district court
under diversity jurisdiction are preempted. Id. at
7520 n. 8. The Commission limited the scope of the
ruling by concluding that "[o]ther claims, such as
standard breach of contract actions, not dependent
upon the determination of the lowest unit charge or
some other duty arising under Section 315(b) are not
preempted." Id. at 7511. The ruling also established
procedures for filing complaints with the Commis-
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8a
sion's Mass Media Bureau regarding alleged section
315(b) violations. Id. at 7513-14.
To justify its preemption decision, the Commission
stated that Congress had preempted the relevant
causes of action by implication because: (1) the
purpose and character of the federal law revealed an
intent to preempt (2) potentially inconsistent inter-
pretations of federal law could result from state court
litigation; and (3) state causes of action would create
an obstacle to fulfilling Congress' objectives under
the federal statute. Id. at 7511. The FCC also relied
on its broad rulemaking authority under section
315(d), as well as that of sections 4(i) and 303(f) of the
Communications Act, 47 U.S.C. 154(i) & 303(f), as
evidence of Congress' intent to preempt state court
actions. Id. at 7512. Moreover, the FCC concluded:
[Regardless of whether Congress-either
explicitly or by implication-has preempted state
law claims based upon violations of Section 315(b),
the Commission itself has authority to preempt
such claims. Substantial judicial precedent makes
clear that an agency may preempt state action
under the Supremacy Clause whether or not an
intention to preempt can be found in the govern-
ing statute or its legislative history.
Id. (citing Fidelity Fed. Sav. & Loan v. de la Cuesta,
458 U.S. 141,102 S.Ct. 3014, 73 L.Ed.2d 664 (1982)).
In an order adopted on May 14, 1992, the FCC denied
two petitions for reconsideration filed by the petition-
ers in this case. Exclusive Jurisdiction With Re -
spect to Potential Violations of the Lowest Unit
Charge Requirements of Section 315(b) of the Com-
munications Act of 1934, as amended, 7 F.C.C.R.
4123 (1992) (order on reconsideration). The Commis-
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9a
sion rejected all of the arguments raised in the
petitions for reconsideration, which are essentially
the same as the arguments petitioners advance before
this court.
II.
A.
Petitioners assert that this court has jurisdiction
to review the declaratory ruling under 47 U.S.C.
402(a) and 28 U.S.C. 2342(l). Section 402(a) provides
that:
Any proceeding to enjoin, set aside, annul, or
suspend any order of the Commission under this
chapter (except those appealable under subsection
(b) of this section) shall be brought as provided by
and in the manner prescribed in chapter 158 of
title 28.
47 U.S.C. 402(a). 3. Section 2342(1) states that:
The court of appeals . . . has exclusive jurisdic-
tion to enjoin, set aside, suspend (in whole or in
part), or to determine the validity of-
(1) all final orders of the Federal Communi-
cation Commission made reviewable by section
402(a) of title 47 . . . .
28 U.S.C. 2342(1).
Before addressing the constitutional considera-
tions affecting whether this court has jurisdiction
over petitioners' challenge, it is necessary to charac-
___________________(footnotes)
3 Section 402(b) specifies that certain FCC decisions, such as
those involving licenses or permits, must be. appealed to the
Court of Appeals for the District of Columbia Circuit. 47
U.S.C. 402(b).
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10a
terize appropriately the FCC action. The Commis-
sion's declaratory ruling-that Congress (or the
Commission itself,) has preempted the jurisdiction of
state courts and federal district courts, in diversity
cases, when the candidate claims that the broad-
caster's rates exceeded the lowest unit charge-is
not a regulation promulgated pursuant to section
315(d). Unlike the regulations found at 47 C.F.R.
73.1942, 76.206 (1994), the ruling does not define
relevant statutory terms, dictate the use of certain
industry practices, or prescribe appropriate methods
for calculating the lowest unit charge. Furthermore,
the declaratory ruling is not an adjudication of a
pending case involving a dispute between a candidate
and a broadcast station licensee. It is not a decision, a
letter of admonition, or an order levying a penalty of
forfeiture, a loss of operating authority, or a refund to
the candidate. Because it is axiomatic that Congress
has not delegated, and could not delegate, the power to
any agency to oust state courts and federal district
courts of subject matter jurisdiction, the FCC's de-
claratory ruling amounts to an agency opinion-a
pronouncement interpreting the Communications Act
to the effect that Congress impliedly abolished state
and federal court jurisdiction over lowest unit charge
violations. 4.
___________________(footnotes)
4 The FCC's action in this case is thus distinguishable from
prior cases involving the preemptive effect of the Communi-
cations Act in other contexts. See, e.g., City of New York v.
FCC, 486 U.S. 57, 108 S.Ct. 1637, 100 L.Ed.2d 48 (1988) (Up-
holding the preemptive effect of FCC regulations that
conflicted with local regulations regarding technical standards
for cable television); Farmers Educ. & Coop. Union of Am. v.
WDAY, Inc., 360 U.S. 525, 79 S. Ct. 1302, 3 L.Ed.2d 1407 (1959)
(holding that 315(a)'s prohibition on censorship preempts
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11a
B.
Petitioners challenge the declaratory ruling based
on the following arguments: (1) there can be no
preemption by implication from the legislative
scheme because section 315(b)(1) was enacted as part
of the Federal Election Campaign Act, rather than as
one of the Communications Act Amendments, and
thus the relevant legislative scheme is FECA rather
than the Communications Act; (2) the doctrine of
primary jurisdiction would provide sufficient uni-
formity and allow the FCC to determine whether
lowest unit charge violations have occurred without
completely removing cases from federal and state
courts; (3) the FCC cannot grant adequate relief for
section 315(b)(1) violations because the relevant
provisions of the Communications Act do not author-
ize the FCC to order refunds of overcharges; (4) the
ruling impermissible removes federal question
jurisdiction from an Article III court; and (5) the
power to preempt state law claims is not within the
authority delegated by Congress to the FCC.
To support the Commission's power of preemption
in this context, respondents and interveners repeat
many of the rationales from the declaratory ruling,
including the following (1) federal law occupies the
field; (2) state activity in this area would frustrate
uniform enforcement and create inconsistent inter-
pretations of the statute, thereby harming the goal of
___________________(footnotes)
state libel suits arising from broadcasts by political candidates);
KVUE, Inc. v. Moore, 709 F.2d 922 (5th Cir. 1983) (upholding
preemption of a state statute mandating use of the lowest unit
charge on a year-round basis rather than only within the 45- to
60-day period before a primary or an election), aff'd mem., 465
U.S. 1092, 104 S. Ct. 1580, 80 L. Ed.2d 114 (1984).
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12a
increased candidate access to the broadcast media; (3)
the complexity of determining lowest unit charge
violations requires the expertise of the FCC; (4) the
FCC has broad enforcement authority under section
315(d) and broad remedial powers under other pro-
visions of the Communications Act; and (5) adjudi-
cation at the FCC is the exclusive remedy for lowest
unit charge violations because section 315(b) provides
no implied right of action.
C.
Section 315(b) addresses situations in which
candidates enter into contracts with broadcast sta-
tions for the purchase of airtime for political adver-
tisements; the statutory language requires that the
price stated in the contract "shall not exceed . . . the
lowest unit charge." 5. Essentially, petitioners ask
this court to declare whether, at some future date, a
candidate may bring a breach of contract action in
state court 6. contending that a broadcaster's rates
exceeded the lowest unit charge and seeking recovery
of the overcharge. 7. The question facing the court in
such a case would be whether Congress has fore-
___________________(footnotes)
5 This implicit adoption of section 315(b)'s lowest unit
charge obligation is analogous to statutes requiring that con-
tracts, such as insurance policies, contain certain provisions.
6 Petitioners also ask whether a candidate could sue in
federal district court under diversity jurisdiction. Our refer-
ences herein to suits in state court include diversity suits in
federal district court.
7 In such a suit, the lowest unit charge determination would
be a question of fact. Absent the presence of FCC regulations
governing the determination of the lowest tit charge, the
court would simply look to the statute for guidance. Other-
wise, the court, pursuant to the Supremacy Clause, would
apply the FCC regulations.
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13a
closed the power of the state court to entertain that
suit. Petitioners invite us to decide whether the
state court would have to dismiss the candidate's
claim on the broadcaster's motion or sua sponte for
want of subject matter jurisdiction. By asking this
court to decide what another court should do in a
future case, petitioners are posing a hypothetical
question, the answer to which would be an advisory
opinion.
Article III of the Constitution limits the juris-
diction of the federal courts to actual "cases" or
"controversies." Although "those two words have an
iceberg quality, containing beneath their surface
simplicity submerged complexities which go to the
very heart of our constitutional form of government,"
the purpose of the requirement is readily apparent-
to limit the federal courts to deciding issues pre-
sented in an adversary framework amenable to judi-
cial resolution and to maintain separation of powers
among the three branches of government. Flast v.
Cohen, 392 U.S. 83, 94-95, 88 S. Ct. 1942, 1949-50, 20
L.Ed.2d 947 (1968); see also Graham v. Butterworth, 5
F.3d 496, 498-99 (11th Cir.1993), cert. denied,-U.S-,
114 S. Ct. 2136, 128 L.Ed.2d 866 (1994). The prohibition
on advisory opinions is a logical corollary of the case
or controversy requirement. "Thus, no justifiable
controversy is presented . . . when the parties are
asking for an advisory opinion, . . . . " Flast, 392 U.S. at
95, 88 S. Ct. at 1950.
These Article III requirements apply with the
same stringency in the administrative law context.
See Region 8 Forest Serv. Timber Purchasers
Council v. Alcock, 993 F.2d 800, 804 (11th Cir.1993)
("[T]he 'case or controversy' requirement is of
special. importance in cases where a federal court is
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14a
being asked to rule on the legality of an act of the
executive branch."), cert. denied,-U.S-, 114 S. Ct.
683, 126 L.Ed.2d 651 (1994); New Jersey Speech-
Language-Hearing Ass'n v. Prudential Ins. Co., 724
F.2d 383, 385 (3d Cir. 1983) ("Parties seeking to chal-
lenge administrative actions must satisfy the consti-
tutional prerequisites derived from the 'case or con-
troversy' clause of Article III, as well as a set of
prudential requirements adopted by the courts . . . . ");
see also R.T. Vanderbilt Co. v. Occupational Safety
& Health Review Comm'n, 708 F.2d 570, 574 (11th
Cir. 1983) (prohibition on advisory opinions); Alabama
Power Co. v. FERC, 685 F.2d 1311, 1314-15 (11th
Cir. 1982) (ripeness), cert. denied, 463 U.S. 1230, 103
S. Ct. 3573, 3574, 77 L.Ed.2d 1415 (1983); Branton v.
FCC, 953 F.2d 906, 909 (D.C. Cir. 1993) (standing), cert.
denied,-U.S-, 114 S.Ct. 1610, 128 L.Ed.2d 338
(1994). Federal courts simply are not permitted to
render advisory opinions regarding agency pro-
nouncements. See, e.g., Town of Deerfield v. FCC,
992 F.2d 420, 429 (2d Cir.1993) ("[T]he Commission
plainly has no power to request or require such a
court to render an opinion that is merely advisory.");
City of Peoria v. General Elec. Cablevision Corp.
(GECCO), 690 F.2d 116, 120 (7th Cir. 1982) (A Party
"cannot simply put to the district court the abstract
question whether [a rule] is valid, for it cannot re-
ceive an advisory opinion from a federal court .");
American President Lines v. Federal Maritime Bd.,
112 F. Supp. 346, 348 (D.D.C.1953) ("The courts may
not pass upon the legality of official action merely
because some one desires a judicial opinion on the
subject."). Consequently, we are prohibited from
determining the propriety of the FCC's declaratory
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15a
ruling given the abstract circumstances in which this
issue is presented.
It should be obvious from the foregoing discussion
that our refusal to answer the question petitioners
pose will not preclude them from obtaining an answer.
Any of them who have been or may in the future be
overcharged by a broadcaster while running for public
office may seek judicial relief. In such a case, the
court can determine whether Congress, in enacting
section 315(b), has foreclosed the courts from grant-
ing relief by giving the Commission exclusive juris-
diction to adjudicate overcharge disputes. Because
we conclude that no case or controversy is presented,
we DISMISS the petition for review.
IT IS SO ORDERED.
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16a
APPENDIX B
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In Re:
Exclusive Jurisdiction
With Respect to Potential
Violations of the Lowest Unit
Charge Requirements of Section
315(b) of the Communications
Act of 1934, as amended
DECLARATORY RULING
Adopted: December 12, 1991; Released December 13, 1991
By the Commission Commissioner Quello dissent-
ing in part and issuing a statement; Commissioner
Marshall issuing a statement.
1. By this ruling the Federal Communications
Commission declares that any state cause of action
dependent on any determination of the lowest unit
charge under Section: 315(b) of the Communications
Act, or of some other duty arising under that subsec-
tion, is preempted by federal law. The sole forum for
adjudicating such matters shall be this Commission.
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17a
BACKGROUND
2. Under Section 315(b) of the Communications
Act, a broadcast station's charges for advertising
time purchased for candidate uses while campaigning
for political office during the last 45 days of a primary
campaign or the last 60 days of a general election
campaign may not exceed "the lowest unit charge of
the station for the same class and amount of time for
the same period." Outside those immediate pre-
election periods, the charges to such candidates may
not exceed "the charges made for comparable use of
such station by other users." Subsection (d) of Sec-
tion 315 directs the Commission to prescribe rules to
implement the statute. The Commission over the
years has adopted rules, provided general guidance
and issued rulings both orally and in writing in
response to complaints and requests for declaratory
relief in particular cases arising under Section-315(b)
(as well as Sections 315(a) and 312(a)(7)). In its
continuing attention to political broadcasting issues,
the Commission is in the process of updating its
guidelines and regulatory policies regarding current
and possible future advertising practices with respect
to political programming. 1.
3. In a Public Notice released on October 10, 1991, 2.
the Commission stated that it was considering issu-
ing, on its own motion, a declaratory ruling con-
firming its earlier conclusions that it has exclusive
jurisdiction to determine questions of liability for
violations of Section 315(b). Citing litigation in
several states where candidates for elective office
have sued broadcast stations for charging rates
allegedly in excess of those permitted under Section
315(b), and the inconsistent rulings with regard to
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18a
jurisdiction that have been issued to date in such
litigation, the Commission specifically sought public
cement upon the following issues: (1) whether its
jurisdiction to determine the lawfulness of political
advertising charges is exclusive; (2) whether federal
and state courts must. refer the liability question to
the FCC in any case alleging that charges for polit-
ical advertising are excessive; and (3) whether its
exclusive jurisdiction should extend beyond the basic
liability question and, if so, whether the Commission
should preempt any cause of action in any court in
which an alleged violation of Section 315(b) is an
essential element.
4. Comments were received on October 21, 1991. 4.
The 27 sets of cements filed on behalf or by
broadcasting interests argued that the Commission
has exclusive jurisdiction over all aspects of com-
plaints alleging excessive political advertising charg-
es and urged the Commission to preempt completely
any such cause of action in any court. 5. The joint
candidate commenters stated that the FCC does not
have exclusive jurisdiction over Section 315(b) mat-
ters and that it lacks the authority to confer upon
itself exclusive jurisdiction over any matters. 6. Fin-
ally, one commenter did not address the merits of the
legal questions posed in the Public Notice, but
requested instead that the Commission not issue any
declaratory ruling to assert exclusive or primary
jurisdiction until it provides "express authority for a
candidate and a candidate's representatives to have
access to a station's commercial files. upon reasonable
request." 7.
5. On the basis of our review of the comments and
our own independent legal analysis, as set forth be-
low, the Commission has concluded that any state
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19a
cause of action dependent on any determination of the
lowest unit charge under Section 315(b) or of some
other duty arising under that subsection should be
preempted. 8. Other claims, such as standard breach of
contract actions, not dependent upon the determin-
ation of the lowest unit charge or some other duty
arising under Section 315(b) are not preempted. 9.
DISCUSSION
6. The preemption doctrine has its roots in the
Supremacy Clause of the Constitution. U.S. Const.,
Art. VI, cl. 2. Preemption may be either express or
implied, and it is "compelled whether Congress' com-
mand is explicitly stated in the statute's language or
implicitly contained in its structure and purpose." 10.
In the absence of express preemptive language, an
intention by Congress to supersede state law may be
inferred because of the pervasiveness of the federal
regulatory scheme, because the federal interest is so
dominant, or because the purpose of the federal law
and the character of its obligations reveal an intent to
preempt. 11. Furthermore, a court will find preemption
where state law would actually conflict with federal
law or would stand as an obstacle to the accomp-
lishment of the full purposes and objectives of
Congress. 12.
7. We find that Congress by implication preempted
state causes of action of which alleged violations of
Section 315(b) are an integral part because: (1) the
purpose of the federal law and the character of its
obligations reveal an intention to preempt such
causes of action (2) allowing actions to proceed in
state courts would result in potentially inconsistent
interpretations of federal law and (3) such actions
would stand as an obstacle to the realization of the
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20a
full objectives of Congress. The express language of
Section I of the Communications Act provides that,
for purposes of "centralizing authority" with respect
to interstate communications, Congress created the
FCC "which shall execute and enforce the provisions
of [the] Act." Moreover, the Supreme Court has held
that, in adopting the Act, Congress "formulated a
unified and comprehensive regulatory system for the
[broadcasting] industry" to be administered by the
Commission. 13. As to Section 315 in particular, courts
have held that the Commission's authority is exclu-
sive with respect to matters addressed specifically by
the Act and, thus, that it preempts state and local
regulation of those matters. 14.
8. Section 315 itself embodies Congress' mandate
that uniform federal policies govern political broad-
casting rates. In particular, Section 315(d) specific-
ally directs the FCC to "make rules and regulations
to carry this provision [Section 315] into effect."
This narrowly focused directive, which exists in
addition to the more general grant of Rule Making
authority in Sections- 4(i) and 303(f) of the Act, 47
U.S.C. 154(i) and 303(r), is "something more" than
the usual delegation of Rule Making authority. 15.
Rather, it "amounts to a congressional direction to
the FCC to recognize the importance of this partic-
ular section of the statute and to prescribe separate
rules and regulations to deal with the multitudinous
situations that arise in applying it to all federal, state
and local candidates for office throughout the
nation." 16. In view of this comprehensive regulatory
and enforcement scheme, we find that Congress' pur-
poses and objectives in adopting Section 315(b) re-
veal an intention to preempt state litigation over
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21a
the charges for the broadcast of political adver-
tisements. 17.
9. We further find that, regardless of whether
Congress-either explicitly or by implication-has
preempted state law claims based upon violations of
Section 315(b), the Commission itself has authority to
preempt such claims. Substantial judicial precedent
makes clear that an agency may preempt state action
under the Supremacy Clause whether or not an
intention to preempt can be found in the governing
statute or its legislative history. The leading case on
agency preemption is Fidelity Federal Savings &
Loan Ass'n v. de la Cuesta, 458 U.S. 141 (1982). The
Supreme Court in that case held that "[f]ederal regu-
lations have no less preemptive effect than federal
statutes." 458 U.S. at 153. The Court held further
that if the agency has not exceeded its statutory
authority or acted arbitrarily, its preemption order
should be upheld. 458 U.S. at 154.
10. The Supreme Court applied the rule estab-
lished in de la Cuesta to affirm this Commission's
preemption of some aspects of state regulation of
cable television in City of New York v. FCC. 18. In
proper circumstances, the Court said, the agency
itself may determine "that its authority is exclusive
and preempts any state efforts to regulate in the
forbidden area." 19. The Court also stated that a federal
agency acting within its delegated authority is
empowered to preempt state laws "to the extent it is
believed that such action is necessary to achieve its
purposes." 20. In reviewing agency preemption orders,
moreover, the Court said that it would not disturb an
agency's decision to preempt if that decision repre-
sents "a reasonable accommodation of conflicting
policies that were committed to the agency's care,"
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22a
unless it appears "from the statute or its legislative
history that the accommodation is not one that
Congress would have sanctioned." 21.
11. Commission preemption of state claims aris-
ing under Section 315(b) meets the standards
established in City of New York. First, as the Court
stated in that case, a federal agency acting within the
scope of its delegated authority may preempt state
regulation. 22. Here, the Commission clearly has auth-
ority to enforce the lowest unit charge requirement
as it applies to all broadcasters and all candidates; 23.
indeed, it has explicit authority to prescribe appro-
priate rules and regulations "to carry this provision
into effect." 24. The Commission's efforts over the
years to provide guidance as well as to take en-
forcement actions with respect to Section 315(b) are
evidence both of its authority under the statute and of
its commitment to uniform enforcement of its
regulation in this important policy area. Thus, the
Commission is action well within its delegated
authority when it enforces Section 315(b).
12. Moreover, preemption is necessary to allow the
Commission to "achieve its purposes" by developing
uniform standards for interpreting and enforcing
Section 315(b). The importance of having uniform
standards that are understood throughout the broad-
cast industry is underscored by the Commission's
pending Rule Making into political broadcasting,
which seeks, inter alia, to provide certainty and
consistency in this important area of regulation. 25.
Rulings by courts in numerous jurisdictions around
the country almost certainly would produce varying
and possibly conflicting determinations among state
courts and between those courts and the Commission,
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23a
thereby frustrating the objectives of certainty and
uniformity. 26.
13. As various commenters have pointed out,
inconsistency in the enforcement of Section 315(b)
would leave both candidates and broadcasters unsure
of. their respective rights and responsibilities under
the lowest unit charge requirement. 27. The prospect
of lawsuits in various states might make it difficult, if
not perilous, for broadcasters who serve more than
one jurisdiction to provide various candidates prompt,
authoritative quotes for the lowest unit charge
available to them. We thus find that state court
adjudication of claims of which alleged violations of
Section 315(b) are an integral part would "conflict
with the basic objectives of federal policy" 28 with
respect to political broadcasting. The development
and enforcement of consistent guidelines by this
agency, in contrast, would provide critical certainty:
to candidates the certainty that they are indeed
receiving the lowest unit charge; and to broadcasters,
the certainty that they are fully complying with the
law.
14. Preemption also is necessary for another
important reason. While there is no express statu-
tory right of candidate access to broadcast facilities
beyond the "reasonable" access provisions of Section
312(a)(7) of the Act for federal candidates, there is a
public good in the dissemination of information
regarding political campaigns. Indeed, the legislative
history of the political broadcasting laws suggests
that one purpose of those laws was "to give candidates
for public office greater access to the media" and "to
halt the spiraling cost of campaigning for public
office." 29. We believe that the comments of some
broadcasters are correct in pointing out that
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24a
inconsistent rulings on Section 315(b) lawsuits might
encourage some stations simply to refuse to accept
political advertisements, or at least, in the case of
federal candidates, to curtail such advertisements to a
bare minimum. Such a response to state lawsuits, we
believe, would frustrate the Congressional intention
to encourage greater (and less costly) access for
candidates. 30. We conclude, therefore, that we should
preempt state lawsuits of which allegations of viola-
tions of Section 315(b) are an integral part to avoid
frustration of this federal purpose. 31.
15. As the Court observed in City of New York, "it
has long been recognized that many of the respon-
sibilities conferred upon federal agencies involve a
broad grant of authority to reconcile conflicting
policies." 32. In this case, the Commission's deter-
mination that preemption is necessary to avoid dis-
ruption or frustration of its enforcement of Section
315(b) is a "reasonable. accommodation of conflicting
policies." 33. The emergence of civil litigation in a
number of courts around the country raises a real
possibility of conflicting rulings as to what consti-
tutes the "lowest unit charge" and what remedies are
appropriate for violations of the statutory require-
ment. The FCC is the authority specifically desig-
nated by Congress to enforce the lowest unit charge
requirement, 34. however, precisely because it has the
expertise necessary to make such determinations
based upon its understanding of the complex and often
arcane practices of the broadcast advertising
industry. Preempting claims arising under Section
315(b) represents a reasonable approach to avoiding
conflicting policies in the interpretation and
enforcement of the lowest unit charge requirement,
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25a
16. There also is no basis for believing that
preemption is "an accommodation of policies that Con-
gress would not have sanctioned." 35. The Supreme
Court in other contexts has found that Congress
intended in adopting the Communications Act to give
the FCC broad authority to provide "a unified and
comprehensive regulatory system for the [broad-
casting] industry." 36. Although in adopting Section
315(b) Congress did not expressly preempt state
regulation, neither did it indicate any intention that
the Commission refrain from preempting if the Com-
mission believes such action is necessary or approp-
riate to its enforcement of that section. 37.
17. We recognize that, in our "previous con-
sideration of this matter, 38. we limited our conclusion
in favor of preemption to the issue of liability and did
not find it necessary to decide whether preemption
should also extend to efforts to obtain state law
remedies for the violation of federal requirements
relating to lowest unit charge. After considering the
comments submitted in response to the Public Notice,
however, we have had an opportunity to thoroughly
analyze the reasons that support preemption in this
area. It is now clear to us that those considerations
support preempting state law remedies for the vio-
lations of the lowest unit charge requirement or of
some other federal duty arising under Section 315(b).
18. The Commission has been specifically desig-
nated by Congress-as the authority responsible for
enforcing Section 315(b), and a determination of the
appropriate remedy for a violation of Section 315(b) is
an integral part of that enforcement, State efforts to
provide their own remedies for a violation of the
lowest unit charge requirement of Section 315(b), or
of other duties arising thereunder, would interfere
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26a
with uniform enforcement of the Act by the Com-
mission just as surely as would state determinations
of the initial question of whether Section 315(b) has
been violated.
19. The Supreme Court recognized a related policy
concern. when it upheld the preemption of judicial
remedies for defamation arising from political broad-
casts in Farmers Educational & Coop. Union v.
WDAY, Inc. 39. In that case, the Court found that
allowing a separate judicial remedy would "hamper
the Congressional plan to develop broadcasting as a
political outlet." 40. Therefore, the Court affirmed the
preemption of local lawsuits that stand "as an ob-
stacle to the accomplishment and execution of the full
purposes and objectives of Congress." 41. We believe
that allowing state courts, to impose additional
remedies for violations of Section 315(b) might en-
courage stations to refuse to carry political adver-
tising, and thereby would frustrate the Congressional
intent to foster dissemination of information regard-
ing political campaigns. 42. Thus, we conclude that our
preemption should extend to remedies as well as to
the determination of liability.
20. Finally, we note that Section 414 of the Act,
which preserves remedies "existing at common law or
by statute," does not foreclose our preemptive action
here. Such "savings clauses" do not preclude pre-
emption where allowing state remedies would lead to
a conflict with or frustration of statutory purposes. 43.
In any event, the lawsuits we preempt here have no
meaning apart from Section 315(b) and thus derive not
from any "existing" state common law or statutory
origin, but solely from the federal statute. 44. State
actions to enforce the Section 315(b) obligations of
broadcasters are far removed from the traditional
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27a
state remedies that are preserved by the "savings
clause." See, e.g., Arrow Transp. Co. v. Southern R.
Co., 372 U.S. 658, 671 n. 22 (1963). Section 414 cannot
have been intended to "create" new state causes of
action based on legal obligations established under
federal law and enforced by this Commission. 45.
PROCEDURES
21. The Commission finds that it will further our
ability to promptly and fairly dispose of Section 315(b)
complaints brought to us as" a consequence of this
ruling (and all other Section 315(b) claims) by setting
out the procedural framework for resolution of such
complaints.
22. In order to invoke the Commission's enforce-
ment procedures, complainants alleging a violation of
Section 315(b) will be required to make a prima facie
case. 46. This must, at minimum, consist of a short,
plain statement of the claim sufficient to show that
the complainant is entitled to the relief requested.
This requirement could be met by a simple recitation
of a sequence of events showing that, if all allegations
are accepted as true and all inferences are drawn in
the complainant's favor, the complaint would reason-
ably lie. 47. The complainant will be required to serve
the complaint upon the station, and the station will be
given ten days to answer the complaint if it so
desires. If, after reviewing the complaint and answer
(if filed), the Mass Media Bureau ("Bureau") finds
that a prima facie case has been made, it will issue an
Order that will give the parties the opportunity to
elect one of two alternative procedures to resolve the
complaint: mediation (Alternative Dispute Resolu-
tion); 48. or evaluation and disposition by the Bureau
subject, of course, to review by the full Commission.
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28a
23. Under either process, once a prima facie
showing has been made, the complainant will be
entitled to limited discovery subject to specific con-
ditions. The Bureau's Order will establish the
limitations on and timetable for discovery. 49. Docu-
ments subject to discovery will consist of the sta-
tion's records related to rates, terms and conditions
for any advertising, commercial or political, broadcast
during the 45-or 60-day period pertinent to the
complaint. The station will be permitted to redact its
records prior to production by deleting the identities
of commercial advertisers and other proprietary
information not relevant to the resolution of the
complaint. Document production will be subject to a
protective order limiting its examination to parties
designated in the order (as well as the Commission),
and prohibiting further dissemination of the infor-
mation revealed thereby. 50.
24. Within 30 days after the completion of dis-
covery, the complainant will be required to file an
amended complaint alleging specific facts based on the
information discovered, stating the nature of the
Section 315(b) violation and the amounts. said to be
owed. The station complained against will be given a
15 day opportunity to respond. If the parties have not
elected to pursue mediation, 51. the Bureau will either
impose an appropriate sanction where it finds the
rules have been violated, or issue an appropriate order
dismissing the complaint where it finds no violation. 52.
In appropriate circumstances, the dispute may be
referred to the Administrative Law Judges (ALJs) for
resolution.
25. The sanctions available to the Commission for
Section 315(b) violations (in addition to the rebate of
any amounts found to have been charged in violation
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29a
of Section 315(b) include forfeitures, letters of admon-
ition, short-term renewal, and designation of the
station's license for revocation. Any decision ren-
dered by the Bureau or an ALJ may be appealed
directly to the full Commission. 53.
26. Accordingly, pursuant to Sections 1, 4(i),
303(r), and 315(b) and (d) of the Communications. Act,
47 U.S.C. 151, 154(i), 303(r), and 315(b) and (d);
Section 5(e) of the Administrative Procedure Act, 5
U.S.C. 556(e); and Section 1.2 of the Commission's
rules, 47 C.F.R. 1.2, IT IS DECLARED- that state
causes of action involving alleged violations of the
lowest unit charge requirement or of some other duty
arising under Section 315(b) ARE PREEMPTED to
the extent indicated above.
FEDERAL COMMUNICATIONS COMMISSION
Donna R. Searcy
Secretary
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30a
APPENDIX I [TO THE FCC DECLARATORY RULING]
COMMENTS FILED IN INTENTION TO ISSUE
DECLARATORY RULING WITH RESPECT TO
EXCLUSIVE AUTHORITY OF FCC TO DETERMINE
WHETHER BROADCASTERS HAVE VIOLATED LOWEST
UNIT CHARGE REQUIREMENT OF SECTION 316(b)
1. CBS, Inc.
2. Northern Television, Inc.
3. Association of Independent Television Stations
4. Barnes, Browning, Tanksley & Casurella
Long, Aldridge & Norman
Savell & Williams
Venema, Towery, Thompson & Chambliss
5. Gillett Communications of Atlanta, Inc.
Gillett Communications of Boston, Inc.
Gillett Communications of San Diego, Inc.
Gillett Communications of Ohio, Inc.
Gillett Communications of Detroit, Inc.
Gillett Communications of Milwaukee, Inc.
KSBY, Inc
KSBW, Inc.
WTVT License, Inc.
6. Busse Broadcasting Corporation
7. Fox Television Stations, Inc.
Allbritton Communications Company
Federal Broadcasting Company
8. WMUR-TV, Inc., Manchester, New Hampshire
9. Benedek Broadcasting Group
Lin Broadcasting Corporation
Midwest Television, Inc.
Paducah Newspapers, Inc.
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31a
Post-Newsweek Stations, Inc.
Providence Journal Company
The Spartan Radiocasting Company
10. National Broadcasting Company Inc.
11. American Family Broadcast Group, Inc.
12. Nationwide Communications, Inc.
13. Freedom Newspapers, Inc.
14. Tribune Broadcasting Company
Gray Communications Systems, Inc.
Gannett Co., Inc.
The Spartan Radiocasting Company
The Providence Journal Company
Westinghouse Broadcasting Company, Inc.
Burnham Broadcasting Company, A Limited
Partnership
Post-Newsweek Stations, Inc.
15. Niels C. Holch, McGuiness & Holch
16. Osborn Communications Corporation
17. State Broadcasting Associations
California Broadcasters Association
Connecticut Broadcasters Association
Florida Association of Broadcasters
Illinois Broadcasters Association
Iowa Broadcasters Association
Louisiana Association of Broadcasters
Maine Association of Broadcasters
Maryland/District of Columbia Delaware
Broadcasters Association
Michigan Association of Broadcasters
Minnesota Broadcasters Association
Missouri Broadcasters Association
Nebraska Broadcasters Association
New Hampshire Association of Broadcasters
New Jersey Broadcasters Association
New York State Broadcasters Association
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32a
Oklahoma Association of Broadcasters
Pennsylvania Association of Broadcasters
Tennessee Association of Broadcasters
Texas Association of Broadcasters
Utah Broadcasters Association
Washington State Association of Broadcasters
West Virginia Broadcasters Association
Wisconsin Broadcasters Association
18. Minnesota Broadcasters Association
19. Great American Television and Radio Company,
Inc.
Kelly Broadcasting Company
McGraw-Hill Broadcasting Company, Inc.
The New York Times Company
20. Capital Cities/ABC, Inc.
Chris-Craft Industries, Inc.
The Times-Mirror Company
21. WCOV-TV, Montgomery, Alabama (Woods
Communications Corp.)
22. Mobile Video Tapes, Inc.
Louisiana Television Broadcasting
Corporation
Clear Channel Television, Inc.
Rocket City Television, Inc.
23. A.H. Belo Corporation
Booth American Company
Broad Street Television, L.P.
Cosmos Broadcasting Corporation
Cox Enterprises, Inc.
Diversified Communications
Evening Post Publishing Company
First Media Corporation
H & C Communications, Inc.
Multimedia, Inc.
Nebraska Television Corporation
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33a
River City Broadcasting, L.P.
24. National Association of Broadcasters
25. WKRG-TV, Inc.
26. Woods Communications Group, Inc.
LATE FILED COMMENTS **
1. Pulitzer Broadcasting Company and WDSU
Television, Inc.
2. Westinghouse Broadcasting Company, Inc.
** Late-filed comments were treated as informal
comments.
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34a
Separate Statement of Commissioner
James H. Quello, Dissenting in part.
In re: Exclusive Jurisdiction With Respect to
Potential Violations of the Lowest Unit Charge
Requirements of Section 315(b) of the
Communications Act of 1934, as amended.
By this Declaratory Ruling ("Ruling"), the Com-
mission is taking the important step of reaffirming
our exclusive jurisdiction to enforce violations of
Section 315 of the Communications Act. To the
extent it does so, the Ruling is fully supported by law
and represents sound policy. I can support this aspect
of the Ruling without reservation.
I think it is important to emphasize that this action
does not represent a new assertion of FCC authority.
Section 315 never has been considered to have created
a private right of action separate from our admin-
istrative processes. See, e.g., Belluso v. Turner
Communications Corp., 633 F.2d 393, 397 (5th Cir.
1980). Until recently, no one had ever sought a
judicial remedy for purported lowest unit charge
violations. In the two decades since Section 315(b)
was enacted, the Commission has provided the sole
remedy.
So in many ways this Ruling merely recognizes the
obvious. It certainly is no departure from the
Commission's historic view of its jurisdiction and
statutory responsibilities. This necessarily means
that the Commission is not "taking away" any
existing remedy.
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35a
Conspicuously absent from the Ruling is any
discussion of the Commission's existing complaint
procedures or any suggestion that they have been in
some way inadequate. Perhaps the reason for this
omission is the fact that the Commission did not
request comment on the question of procedures, nor
did it engage in much internal analysis on this point. 1.
It has been suggested that the FCC is not obligated
to provide parties an opportunity to comment on
procedural issues. Whether or not this claim is true
in this context, the Commission has been rather
erratic in this proceeding in deciding when to solicit
and when to forego public input. For example, there
is no requirement that the Commission receive com-
ments in order to promulgate a declaratory ruling,
yet we chose to do so here. Also, in our Notice of
Proposed Rulemaking, the Commission solicited
advice on procedures for implementing sponsorship
ID and other requirements. In all of our current
proceedings, the question of complaint procedures is
the only significant subject on which we did not
request comment. If, as some have suggested, our
current proceedings "may be the most important
determinations made since the enactment of the
lowest unit charge standard," this omission is
exceedingly strange.
At this point, the new procedural guidelines raise
more questions than they answer. For example, the
Ruling encourages the use of Alternative Dispute .
Resolution at a time when the Commission's policy on
such procedures is essentially conceptual. There is
no discussion of how discovery will be limited to
relevant documents or how the Commission will
enforce such limits. Moreover, although the Ruling
expresses concern with the potential administrative
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36a
burden created by complaints, it establishes a new
multi-stage procedure that includes a complaint,
discovery, an amended complaint and several levels of
Commission decisions including the possibility of
hearings.
I dissent from the hastily made decision to adopt
procedures because we do not yet know whether the
new guidelines will help or make matters worse. Will
the new procedures allow candidates to make a prima
facie case and obtain quick relief or will they delay
matters? Will they encourage the filing of specu-
lative complaints, thus requiring the extension of our
abuse of process rules? Will the number of com-
plaints diminish now that the Commission is clarify-
ing the political rules or will the volume of complaints
under the new procedures create an administrative
nightmare? We simply do not know. And, unfortu-
nately, there was insufficient interest at the Com-
mission in taking the time to find out.
I would have preferred to adopt the Declaratory
Ruling on preemption and at the same time, issue a
Further Notice to explore these issues. I believe that
candidates, broadcasters and other interested parties
would have welcomed the opportunity to comment on
the issue of procedures.
Ironically, the internal pressure to adopt pro-
cedures intensified at the very time that the Com-
mission is clearing up the confusion that prompted
this Declaratory Ruling. Along with this Ruling and
the Report and Order, the Commission is releasing a
number of enforcement, actions arising from the 1990
political broadcasting audit. Contrary to the exag-
gerated claims that 80 percent of television and 50
percent of radio stations overcharged candidates, the
Bureau is assessing fines for overcharging in only
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37a
two cases-about 7 percent of the stations audited.
All together, the Bureau is issuing Notices of
Apparent Liability to five of the thirty stations we
examined, two for lowest unit charge violations and
three for political file violations. In short, the level of
rule violations by broadcasters is far below what some
suggested in the wake of the audit. For this reason I
wonder whether the rush to adopt new procedures
may be premature.
We are doing the right thing by making clear that
the Commission has exclusive jurisdiction to deter-
mine both liability and damages in complaints that
implicate Section 315(b). Although I would not have
taken the additional step of adopting procedures just
yet, I am hopeful that they can be administered
efficiently, and in a way that is fair to all concerned.
___________________(footnotes)
1 To put the issue into some perspective, the-Corn
mission adopted the Notice of Proposed Rulemaking
on our political broadcasting policies last June. The
Commission began examining the issue of jurisdic-
tion in July and released the Notice of Intent to Issue
a Declaratory Ruling in October. By sharp contrast,
a draft order proposing new procedures was circu-
lated less than a week ago at a time when other press-
ing matters were under consideration.
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38a
SEPARATE STATEMENT OF
COMMISSIONER SHERRIE P. MARSHALL
RE: DECLARATORY RULING ON FCC PREEMPTION OF
CLAIMS DEPENDENT ON SECTION 315(b)
Today's declaratory ruling should not be inter-
preted as the generous act of a Federal agency intent
on providing shelter to broadcasters charged with
price gouging. To the contrary, I write separately to
emphasize that the Commission is asserting its juris-
diction over all claims sounding in 47 USC 315(b) so
as to vigorously prosecute such claims, not bury
them.
I joined in calling for this full extension of the
Commission's preemptive authority only after I was
confident that the Commission possessed the legal
authority, the administrative wherewithal, and the
institutional resolve to adjudicate Section 315 claims
fairly and competently. Our declaratory ruling itself
recounts in detail the weighty record compiled in
support of Commission preemption of all claims
arising from the statutory duty of broadcasters to
provide candidates with the lowest unit charge for
political advertisements.
That ruling also details the efficient, yet fair
administrative processes the Commission has estab-
lished for prompt resolution of bona fide overcharge
grievances. Moreover, the fines and rebates we are
separately ordering today for past violations of
315(b) clearly demonstrate this Commission's com-
mitment to enforcing the legal obligations our licens-
ees owe candidates for public office.
While we stand prepared to provide for a timely and
thorough resolution of all candidate overcharge
---------------------------------------- Page Break ----------------------------------------
39a
claims, I would not deny that the recent surge of such
allegations could create a substantial burden on the
Commission's ever scarce resources. Thus, I strong-
ly endorse the Commission's offer of an alternative
dispute resolution process to both candidates and
respondent broadcast stations.
I also wish to underscore the sincerity of the
commission's suggestion that stations and candi-
dates should attempt to reach a mutually satisfactory
settlement of their overcharge disputes. As our
declaratory ruling explains, the Commission will look
favorably upon the private settlement of these dis-
putes in reviewing any overcharge claims brought to
its attention. Indeed, in light of the flood of claims
that might immediately follow our issuance of this
preemption ruling, this Commissioner, for one, will be
disinclined to impose any additional sanctions on
licensees who act promptly to rebate funds or other-
wise redress the bona fide claims of aggrieved candi-
dates pursuant to such a settlement.
Let us move with dispatch to dispose of these past
grievances and ensure-through our newly revised.
political broadcast rules-clear regulatory guidance
to broadcasters and candidates alike for the upcoming
and future political campaign seasons.
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40a
FOOTNOTES
1 See Codification of the Commission's Political
Programming Policies (MM Docket No. 91-168), 6
FCC Rcd 5707 (1991). A Report and Order revising
and codifying these policies is being adopted
contemporaneously with this Declaratory Ruling.
2 Public Notice, FCC No. 91-326, 6 FCC Rcd 5954
(1991), 56 Fed. Reg. 51895 (October 16, 1991)
(hereinafter "Public Notice").
3 News Release, Report No. GN-74, June 6, 1991.
4 A list of the Comments received is attached as
Appendix 1.
5 See, e.g., Comments of National Association of
Broadcasters; Association of Independent Television
Stations; Busse Broadcasting Corporation A.H. Belo
Corporation, et. al.; Capital Cities/ABC Inc., et. al.;
Tribune Broadcasting-Company, Inc.
6 See Comments jointly filed by the law firms of
Barnes, Browning, Tanksley & Casurella; Long,
Aldridge & Normal; Savell & Williams; and Venema,
Towery, Thompson & Chambliss (hereinafter "Kahn
and Jablonski"), on behalf of various candidates
seeking refunds for alleged overcharges.
7 See Comments filed by Niels Holch, on behalf of
certain candidates.
8 Similarly, any state cause of action dependent on
any determination of the lowest unit charge under
Section 315(b) or of some other duty arising under
that subsection that is initiated in a federal court
pursuant to diversity jurisdiction also is preempted
and should be dismissed. Moreover, because Section
315(b) does not give rise to a private federal cause of
action, any federal lawsuit based directly upon
allegations of violations of Section 315(b) should be
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41a
dismissed. See Zen Miller for Governor v. Pacific &
So. Co., No. 1:91-CV-RLV (N.D. Ga., June 4, 1991),
slip opinion at 15 (citing Belluso v. Turner
Communications Corp., 633 F.2d 393, 397 (5th Cir.
1980)), appeal pending. See also William L.
Dickinson v. Cosmos Broadcasting Co., C.A. No.
91-T-072-N (M.D. Ala., April 1, 1991), slip opinion at
18.
9 As the court made clear in Zen Miller for
Governor, supra, claims that stem from Section
315(b) cannot be converted to state law claims simply
because "the plaintiff may have artfully cast his
essentially federal law claims as state law claims."
Slip Opinion at 11-12.
10 Jones v. Ruth Packing Co., 430 U.S. 519, 525
(1977).
11 See Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947).
12 See Hines v. Davidowitz, 312 U.S. 52, 57 (1941).
13 FCC v. Pottsville Broadcasting Co., 309 U.S. 134,
137 (1940). See also Scripps-Howard Radio, Inc. v.
FCC, 316 U.S. 4, 6 (1942).
14 E.g., Belluso v. Turner Communications Corp.,
633 F.2d 393, 396 (5th Cir. 1980).
15 Kay v. FCC, 443 F.2d 638, 643-44 (D.C. Cir. 1970).
16 Id. (emphasis supplied).
17 In adopting the current version of Section 315(b),
Congress indicated that the ability of the Commission
to enforce that provision was an important
consideration. Pointing out the importance of having
restrictions that were "workable and enforceable,"
the Senate committee took comfort in assurance: by
the Commission's chairman that the broadcast
provisions "were enforceable by the Commission." S.
Rept. No. 96, 92d Cong., 1st Sess. 20, reprinted, 1972
---------------------------------------- Page Break ----------------------------------------
42a
U.S. Code Cong. & Admin. News at 1786 (1971). We
note in addition the decision in Belluso v. Turner
Communications Corp., 633 F.2d 393, where the
court held that Congress did not intend to create a
private federal cause of action for damages as a
remedy for a violation of Section 315(a) of the
Communications Act and opted instead for an
exclusive administrative remedy. The court's
reasoning is equally applicable to Section 315(b).
Thus, because we conclude that Congress did not
intend for a private federal cause of action for
damages to be available as an additional remedy when
Section 315(b) is violated, it would seem anomalous if
Congress did not also preempt the states from
providing an additional remedy in the form of a private
state cause of action that is predicated on establishing
a violation of Section 315(b). See also discussion in
paragraph 20 infra.
18 486 U.S. 57 (1988).
19 Id 486 U.S. at 64, citing Capital Cities Cable,
Inc. v. Crisp, 467 U.S. 691, 700 (1984), and de la
Cuesta, 458 U.S. at 152-54.
20 486 U.S. at 63.
21 486 U.S. at 64. See also, e.g., Computer &
Communications Industry Ass'n v. FCC, 693 F.2d
198 (D.C. Cir. 1982), cert. denied, 461 U.S. 938 (1983);
North Carolina Utilities Comm'n v. FCC, 552 F.2d
1036 (4th Cir.), cert. denied, 434 U.S. 874 (1977).
22 486 U.S. at 63, citing Louisiana Public Service
Commission v. FCC, 476 U.S. 355, 368-369 (1986). The
decision in Louisiana that the FCC had exceeded its
authority to preempt relied upon an express
reservation in the Communications Act of authority
for the states to regulate intrastate common carrier
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43a
service. 47 U.S.C. 152(b)(l). No such provision
applies to the regulation of broadcasters.
23 See FCC v. Pottsville Broadcasting Co., 309 U.S.
at 137.
24 47 U.S.C. 315(d). See also Kay v. FCC, 443 F.2d
at 643-44.
25 See Codification of the Commission's Political
Programming Policies, 6 FCC Rcd at 5710 (a purpose
of the Rule Making is to develop a "single, up-to-date
written source to which the public can turn for
guidance" on how to comply with Section 315(b)).
26 Cf. Belluso v. Turner Communications Corp.,
633 F.2d at 396 (administrative remedies before FCC
for violations of Section 315(a) are exclusive); KVUE,
Inc. v. Austin Broadcasting Corp., 709 F.2d 922,
934-36 (5th Cir. 1983) (state law extending "lowest
unit charge" availability beyond statutory period
under Section 315(b) preempted as an obstacle to
achievement of purpose of federal statute).
27 A multiplicity of tribunals and a diversity of
procedures "are quite as apt to produce incompatible
or conflicting adjudication as are different rules of
substantive law." Gardner v. Teamsters Union, 346
U.S. 485, 490-91 (1953).
28 City of New York v. FCC, supra, 486 U.S. at 69.
29 See S. Rept. No. 96, 92d Cong., 1st Sess., at 20,
reprinted, 1972 U.S. Code Cong. & Admin. News at
1774. 30 Cf. Farmers Educational & Coop. Union v.
WDAY, Inc., 360 U.S. 525, 534-35 (1959); KVUE v.
Austin Broadcasting, 709 F.2d at 936 n. 65. We
recognize that, apart from the equal opportunities
provision of Section 315(a), Congress chose not to
require that stations afford access rights to
individual state and local candidates. Nevertheless,
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44a
Congress clearly wanted to foster and encourage
candidates' access to the broadcast media, and the
state lawsuits conflict with that objective.
31 See City of New York v. FCC, 486 U.S. at 64.
32 486 U.S. at 64.
33 Id.
34 See 47 U.S.C. 315(d).
35 See City of New York v. FCC, 486 U.S. at 64.
36 U.S. v. Southwestern Cable Co., 392 U.S. 157, 168
(1968), quoting FCC v. Pottsville Broadcasting Co.,
309 U.S. at 137. See. also Farmers Educational &
Coop. Union v. WDAY, Inc., 360 U.S. at 529 (state
libel actions preempted to avoid undermining a "basic
purpose" of Section 315, even though an express
provision preempting such actions had been deleted
from final version of statute).
37 City of New York v. FCC, 486 U.S. at 69.
37 See News Release, Report No. GN-74, June 6,
1991 (cited inn. 3, supra).
39 360 U.S. at 534-35.
40 360 U.S. at 535.
41 Id. (citation omitted).
42 See KVUE v. Austin Broadcasting, 709 F.2d at
936 n.65.
43 See, e.g., Texas & Pacific Railroad Co. v.
Abilene Cotton Oil Co., 204 U.S. 427 (1907);
Pennsylvania Railroad v. Puritan Coal Mining
Co., 237 U.S. 121, 129 (1915); In re Long Distance
Telecommunications Litigation, 831 F.2d 627 (6th
Cir. 1987); Comtronics, Inc. v. Puerto Rico Telephone
Co., 553 F.2d 701, 707-08 n. 6 (1st Cir. 1977);
Blackburn v. Doubleday Broadcasting, Inc., 353
N.W.2d 550 (Minn. 1984).
44 Zen Miller for Governor, supra, slip op. at 11-12.
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45a
45 See Comtronics, Inc. v. Puerto Rico Tel. Co., 553
F.2d at 708 n. 6.
We also reject the argument that we should not
preempt because only the courts can finally
determine the extent of our authority. Our
preemption order clearly is subject to judicial review
pursuant to Section 402(a) of the Communications
Act, 47 U.S.C. 402(a). See also 28 U.S.C, 2342 et. seq.
But that fact neither disables us from making a
declaratory ruling as to our view of our authority nor
excuses us of our obligation to clarify an issue in
dispute.
46 As a matter of general policy, we also believe that
complainants should bring any lowest unit charge
complaints in a timely manner. It would not serve the
public interest to attempt to resolve such complaints
on the basis of a stale record, and by requiring timely
action we ensure that the Commission is able "to
remedy violations before a pattern of abuse develops."
National Citizens Committee for Broadcasting v.
FCC, 567 F.2d 1095, 1116 (D.C. Cir. 1977), cert. denied,
436 U.S. 926 (1978).
47 We intend to apply a standard similar to that
imposed by Section 8(a)(2) of the Federal Rules of
Civil Procedure. Thus, a complainant would be
required to describe the factual basis for its belief
that a specific station has committed a violation,
rather than, for example, merely accusing a station of
overcharging candidates based upon general
information released in the Mass Media Bureau's 1990
Audit Report. Similarly, the fact that a station made
efforts to settle overcharge claims would not be
considered in deciding whether a complainant has
established a prima facie case.
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46a
In the past, candidates have relied upon invoices or
other information demonstrating inconsistencies in
lowest unit charges. In addition, a complainant could
make a prima facie case by using generally-available
industry or statistical data on average rates to
support its belief that the rate paid by a candidate was
higher than the average rate charged by the station
for the same class of time. These examples, of course,
are not the sole means by which a prima facie case
could be established; rather, they are merely intended
to serve as a useful guide to interested parties.
48 In this regard, the Commission believes that
time-limited mediation may be the most efficient
means of resolving complaints, particularly where the
circumstances of a given case are fairly
straightforward. Therefore, the Commission's
proposed Alternative Dispute Resolution process
(ADR) may provide a useful vehicle to resolve these
complaints in a fair and expeditious manner. See
Initial Policy Statement and Order, FCC Release
No. 91-304, 56 Fed. Reg. 51178 (October 10, 1991).
49 No more than sixty days will be allowed for
discovery.
50 Failure to abide by the terms of the protective
order may result in the imposition of sanctions which
could include those set forth in 47 C.F.R. 1.24
(censure, suspension or disbarment of persons
practicing before the Commission) or possible
dismissal of the complaint.
51 Even if the parties elect to resolve a dispute
through mediation, we of course retain our
jurisdiction to enforce the requirements of Section
315(b).
52 Given the substantial demand on agency
resources which Section 315(b) cases might create,
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47a
the Commission would welcome bona fide, mutually
satisfactory settlements of overcharge disputes
between complainant candidates and respondent
broadcasters. Thus, while retaining our discretion to
determine whether additional sanctions are
warranted, the Commission would be inclined to look
with favor upon such settlements in making that
determination.
53 See 47 C.F.R. 1.115.
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48a
APPENDIX C
Before the
Federal Communications Commission
Washington, D.C. 20554
In Re:
Exclusive Jurisdiction
With Respect to Potential
Violations of the Lowest Unit
Charge Requirements of Section
315(b) of the Communications
Act of 1934, as amended
ORDER ON RECONSIDERATION
Adopted: May 14, 1992; Released: June 12, 1992
By the Commission Commissioner Quello issuing
a statement.
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49a
TABLE OF CONTENTS
Topic Paragraph No.
I. INTRODUCTION 1
[50a]
II. BACKGROUND 2-4
III. DISCUSSION [50a-51a]
5-27
[51a-66a]
A. Preemption of State Causes of Action
Involving Breaches of Duties Under
Section 315(b) 6-23
[52a-64a]
1. Congressional Preemption 6-20
[52a-62a]
a. Congressional Intent 7-13
[53a-57a]
b. Potential for Inconsistent
Interpretations 14-18
[57a-61a]
c. State Actions as an Obstacle
to the Realization of the
Full Objectives of Congress 19-20
[61a-62a]
2. Preemption as an Exercise of the
Commission's Authority 21-23
[62a-64a]
B. Procedures Governing Complaints
Alleging Section 315(b) Violations 24-27
[64a-66a]
IV. CONCLUSION 28
[66a]
V. ORDERING CLAUSES 29-30
[67a]
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50a
I. INTRODUCTION
1. In this Order, we deny two petitions for recon-
sideration of our Declaratory Ruling in this pro-
ceeding. 1. In that decision, we held that federal law
preempts state causes of action dependent on any
determination of the "lowest unit charge" under
Section 315(b) of the Communications Act, or of some
other duty arising under that subsection. 2. Petitions
for reconsideration were fried jointly by certain
candidates for public office in Georgia and Alabama
and their respective campaign committees. In denying
the petitions, we affirm in its entirety the holding of
the Declaratory Ruling and the analysis set forth
therein.
II. BACKGROUND
2. We issued the Declaratory Ruling in con-
junction with our comprehensive examination of
Commission guidelines and regulatory policies re-
garding broadcaster and cable operator practices with
respect to the sale of political programming and
advertising time to political candidates. 3. Our decision
to consider issuing a declaratory ruling regarding
Section 315(b) was prompted by litigation in several
states where candidates for elective office had sued
broadcast stations for charging rates allegedly in
excess of those permitted under Section 315(b) and
the inconsistent court rulings with regard to
jurisdiction resulting from such litigation, Accord-
ingly, we issued a Public Notice in October 1991
stating that we were considering issuing, on our own
motion, a declaratory ruling confirming that the
Commission has exclusive jurisdiction to determine
questions of liability for violations of Section 315(b)
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51a
and inviting public comment on several related
issues. 4.
3. After examining comments filed by interested
persons in response to the Public Notice, we issued
the Declaratory Ruling on December 13, 1991, 5. pre-
empting "any state cause of action dependent on any
determination of the lowest unit charge under
Section 315(b) of the Communications Act, or of some
other duty arising under that subsection . . . ." 6. We
further declared that "[t]he sole forum for adjudi-
cating such matters shall be this Commission." 7. The
preemption encompassed both determinations of lia-
bility under Section 315(b) and remedies for enforcing
the statutes Additionally, we established procedures
governing complaints against. broadcast stations filed
with the Commission alleging violations of the lowest
unit charge requirements of Section 315(b). 9.
4. Petitioners filed the instant petitions for
reconsideration on January 15, 1992. We published
public notice of the petitions in the Federal Register 10.
and established a pleading cycle in accordance with
Section 1.429 of our rules. 11. Oppositions were filed by
three groups of broadcasters, and the petitioners
replied. 12.
III. DISCUSSION
5. Petitioners maintain that the Commission
erroneously concluded that Congress by implication
preempted state causes of action which include as an
element alleged violations of Section 315(b). Peti-
tioners further contend that the Commission lacks
authority to confer upon itself exclusive jurisdiction
over matters related to Section 315(b). Finally, peti-
tioners assert that the procedures established by the
Commission are not adequate to enforce the rights of
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52a
candidates and would stand as an obstacle to the
realization of the full objectives of Congress in enact-
ing Section 315(b). Accordingly, petitioners seek
reconsideration and withdrawal of the Declaratory
Ruling. We consider and reject petitioners' argu-
ments below.
A. Preemption of State Causes of Action Involving
Breaches of Duties Arising Under Section 315(b)
1. Congressional Preemption
6. Our preemption ruling was based, first, on a
finding that Congress by implication preempted state
causes of action dependent on any determination of
the lowest unit charge under Section 315(b), or of
some other duty arising under that subsection. Spe-
cifically, we found that: (1) the purpose of the federal
law and the character of its obligations reveal a
congressional intention to preempt such causes of
action; (2) allowing such actions to proceed in state
courts would result in potentially inconsistent
interpretations of federal law, and (3) such actions
would stand as an obstacle to the realization of the
full objectives of Congress. 13. Petitioners challenge
each of these findings, which we reaffirm below.
a. Congressional Intent
7. Petitioners assert that a proper analysis of
congressional intent regarding preemption must
focus exclusively on the Federal Election Campaign
Act of 1971 ("FECA"), which enacted the current
version of Section 315(b), and its legislative history.
The legislative history of FECA petitioners main-
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53a
tain, is silent regarding any congressional purpose to
provide uniform regulation of broadcast issues by the
Commission. Petitioners also contend that the
legislative goals of FECA and therefore Section
315(b), are different from those of the Communi-
cations Act of 1934. The basic thrust of petitioners'
argument is that the Commission improperly exam-
ined Section 315(b) in the context of the general
regulatory scheme adopted by the Communications
Act of 1934 rather than relying solely on the purposes
and objectives of FECA and its legislative history. 14.
8. We are not persuaded by this argument. Peti-
tioners, in effect, ask us to disregard a fundamental
purpose of the Communications. Act to provide a
uniform scheme of federal regulation and enforcement
over radio communications matters simply because
the lowest unit charge provision of the Act was added
as part of FE CA. This ignores the fact that Congress
elected to adopt Section 315(b) as an amendment to the
Communications Act and fit it within the existing
structure of that statute. We thus reject the notion
that the lowest unit charge provision of Section 315(b)
must be considered in isolation either from other
provisions of Section 315 or other sections of the
Communications Act that demonstrate congressional
intent with regard to the overall scheme of broadcast
regulation and the Act's enforcement. Rather, Sec-
tion 315(b), which is an integral part of the compre-
hensive regulatory and enforcement scheme regard-
ing broadcasting contained in the Communications
Act, properly is examined within the context of the
statute in which Congress chose to codify it. In this
regard, we thoroughly examined in the Declaratory
Ruling the nature and purpose of the comprehensive
and centralized statutory scheme governing broad-
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54a
casting set forth in the Communications Act, includ-
ing the express statutory language providing that the
Commission shall execute and enforce the provisions
of the Act. 15. For the reasons set forth in the
Declaratory Ruling, we affirm our prior conclusion
that "the purpose of the federal law and the character
of its obligations reveal an intention to preempt
[state] causes of action" involving alleged violations
of Section 315(b). 16.
9. We agree with petitioners that the legislative
history and statutory objectives of FECA also are
relevant to the preemption analysis; however, as we
found in the Declaratory Ruling, they too support
our decision to preempt. In this regard, we discussed
in the Declaratory Ruling relevant portions of
FECA's legislative history. For example, we cited
language from the Senate report revealing that
Congress expressly relied upon the assurances of the
then-Chairman of the FCC that the "broadcast pro-
visions" of FECA would be enforceable by the Com-
mission. 17. Congress's reliance on this statement
indicates its clear understanding that the Com-
mission would be the body responsible for enforcing
Section 315(b). Moreover, by ensuring uniform
interpretation and enforcement of Section 315(b),
preemption will further the expressed objectives of
Congress in enacting FECA-"to give candidates for
public office greater access to the media" and "to halt
the spiraling cost of campaigning for public office." 18.
10. Congress also vested in the Commission
explicit authority to implement and enforce the
substantive requirements of Section 315-authority
that was not diminished in any way in the adoption of
FECA. 19. As the United States Court of Appeals for
the District of Columbia Circuit has noted, the
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55a
authority contained in Section 315(d) "amounts to a
congressional direction to the FCC to recognize the
importance of this particular section of the statute
and to prescribe separate rules and regulations to
deal with the multitudinous situations that arise in
applying it to all federal, state and local candidates for
office throughout the nation." 20. This explicit grant of
enforcement authority reinforces our conclusion that
Congress intended the Commission, and not the many
state courts, to resolve any issues concerning the
lowest unit charges for the broadcast of political
advertisements.
11. We reject petitioners' claim that because the
language of Section 315(d) was enacted prior to the
lowest unit charge requirement of Section. 315(b),
subsection (d) does not reveal any congressional
intent with respect to subsection (b). 21. Petitioners
once again ignore the context of the statute and
unpersuasively suggest that we view separate subsec
tions of Section 315 in isolation. By placing the
lowest unit charge requirement in Section 315,
congress clearly intended the existing rulemaking
authority contained in subsection (d) to apply to
subsection (b), 22. and petitioners have cited nothing
that suggests otherwise. Moreover, the lowest unit
charge requirement was merely a change in the
standard for measuring the lawfulness of charges for
political advertisements. Section 315(b) itself existed
long before Congress enacted FECA. Prior to the
FECA amendment, that provision limited the rates
for political advertising to "the charges made for
comparable use of such station for other purposes." 23.
There is no basis for concluding that in amending
that standard in Section 315(b) to include the "lowest
unit charge" concept, Congress in the FECA intend-
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56a
ed to deprive the Commission of its existing authority
under Section 315(d) to enforce all the substantive
requirements of Section 315. Indeed, in our view, the
explicit enforcement authority contained in Section
315(d) is strong evidence of Congress's intent to
provide for uniform implementation and enforcement
of subsection (b).
12. Similarly, we reject petitioners' assertion that
we improperly relied on Belluso v. Turner Com-
munications Corp. 24. to support our conclusion that
Congress by implication preempted state causes of
action involving breaches of duties arising under
Section 315(b). 25. As we noted in the Declaratory
Ruling, in Belluso the court held that Congress had
not intended to create a private federal cause of action
for damages as a remedy for a violation of Section
315(a) of the Communications Act and had opted
instead for an exclusive administrative remedy. 26.
Petitioners claim that Belluso is. distinguishable
because Section 315(a) was enacted as part of the
original Communications Act, whereas the lowest
unit charge requirement of Section 315(b) was added
to the Act through FECA. As indicated above, we find
such distinctions unpersuasive. We affirm our prior
conclusion that the court's reasoning in Belluso is
equally applicable to Section 315(b). Whether the
statutory provision involved is Section 315(a) or
Section 315(b), in our view the statute reveals a
congressional intention to achieve uniform implemen-
tation and enforcement through this Commission. 27.
13. Finally, we reject petitioners' claim that
Section 414 of the Act, which preserves remedies
"now existing at common law or by statute," 28. is
inconsistent with a congressional desire to preempt
state causes of action involving Section 315(b) deter-
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57a
minations. 29. Such a "savings clause" does not pre-
serve lawsuits that are predicated on a federal
statutory right, rather than "existing" state Common
law. 30. A savings clause does not convert federal, law
claims into state causes of action. 31. Also, as we noted
in the Declaratory Ruling, "such 'savings clauses' do
not preclude preemption where allowing state rem-
edies would lead to a conflict with or frustration of
statutory purposes." 32. Moreover, the determination
of whether a broadcaster has complied with" its
Section 315(b) "lowest unit charge" obligations. in-
volves resolution of "issues call[ing] for the type of
administrative evaluations and conclusions that
Congress has entrusted to the informed discretion of
the Commission" and therefore is outside the scope of
the savings clause. See Chicago & North Western
Transportation Co. v. Kalo Brick & Tile Co., .450
U.S. 311, 330 (1981). 33. In this regard, "we pointed out in
the Declaratory Ruling that the Commission has
been designated to enforce the lowest unit charge
requirement "precisely because it has the. expertise
necessary to make such determinations based, upon
its understanding of the complex and often arcane
practices of the broadcast industry." 34. Accordingly,
we affirm our prior conclusion that Section 414 does
not foreclose our preemptive action concerning
Section 315(b). 35.
b. Potential for Inconsistent Interpretations
14. Petitioners next dispute our. expressed con-
cern that "[r]ulings by courts in numerous juris-
dictions around the country almost certainly would
produce varying and possibly conflicting determin-
ations among state courts and between those courts
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58a
and the Commission, thereby frustrating the objec-
tives of certainty and uniformity." 36. Petitioners offer
the following arguments in support of their conten-
tion that there is no danger of inconsistent interpre-
tations of Section 315(b): (1) counts have little latitude
in interpreting Section 315(b) because they act in an
adjudicatory, rather than a Rule Making, context; (2)
the regulations governing Section 315(b) are easily
understandable and applied, (3) all interpretations of
Section 315(b) are subject to ultimate review by the
United States Supreme Court; (4) the inclusion of a
federal statute as a standard in a state cause of action
is not uncommon and (5) the doctrine of primary
jurisdiction is available to ensure uniformity, if
necessary. 37.
15. These arguments are not persuasive. First,
the fact that state courts would make determinations
under Section 315(b) in an adjudicatory rather than a
Rule Making role does not diminish the possibility of
disparate rulings on the issues of liability and reme-
dies. Multiple adjudications by numerous courts
could easily produce inconsistent decisions in various
jurisdictions, thereby creating inconsistent rights
and responsibilities for political candidates and broad-
casters, respectively. In addition, contrary to peti-
tioners' position, Congress expressly recognized in
enacting current Section 315(b) that "[t]he determin-
ation of what is a broadcasting station's lowest unit
charge can be a very complicated matter." 38. Our
recent effort to provide comprehensive guidance in
this area 39. underscores the need to centralize inter-
pretation and enforcement of the lowest unit charge
requirement of Section 315(b) in order to achieve
uniformity and certainty. 40.
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59a
16. We recognize that the Supreme Court has
ultimate authority to review state court decisions,
but this fact does not change our analysis. 41. As a.
practical matter, the Supreme Court cannot and
certainly will not review a multitude of inconsistent
state court decisions involving Section 315(b) deter-
minations. Even if the Supreme Court were to review
a particular state court ruling involving the lowest
unit charge requirement, various other decisions by
state courts would remain unaffected, or at least
there could be extensive litigation and prolonged
uncertainty as to whether those decisions were
implicated by the Supreme Court's decision. We thus
remain convinced of the potential for candidates and
broadcasters to be subject to differing standards in
different jurisdictions. Centralizing determinations
of liability in this Commission will avoid this problem
and avoid frustration of Congress's objective of en-
suring uniform application and enforcement of the
Act's provisions, including Section 315(b). 42.
17. We recognize, as petitioners observe, that state
courts in some circumstances may be called upon to
construe federal law in the context of hearing causes
of action grounded in state law. 43. However, state
court consideration of such matters is not permitted
when Congress has preempted state law, nor when a
federal agency acting within its authority has
preempted state law. Since we have determined that
Congress has by implication preempted state causes
of action related to Section 315(b), and further, that
we have independent authority to preempt such
causes of action, which we have exercised, 44. state
courts in this instance may not entertain deter-
minations of liability and remedies under Section
315(b). 45.
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60a
18. We also are not persuaded by petitioners'
argument that, if state court enforcement of Section
315(b) implicates concerns for uniformity, we should
rely instead on the doctrine of primary jurisdiction in
lieu of preemption. We have determined in this case
that state court jurisdiction over lowest unit charge
claims has been preempted totally by federal law.
Primary jurisdiction would be applicable only if both
the state courts and the Commission had jurisdiction
over lowest unit charge controversies. That doctrine
is a means of accommodating concurrent jurisdiction
between courts and the Commission-not a com-
promise situation that gives state courts jurisdiction
over matters preempted by federal law. Furthermore,
as the Supreme Court has noted, "[n]o fixed formula
exists for applying the doctrine of primary juris-
diction." 46. There is thus no assurance that a
particular court would refer the liability issue under
Section 315(b) to the Commission in the first
instance. 47. Moreover, we have determined that this
procedure would not "ensure uniform enforcement of
Section 315(b), as courts would be free to fashion
remedies inconsistent with those deemed appropriate
by the federal agency charged with implementing and
enforcing the statute. In extending the preemptive
effect of the Declaratory Ruling to remedies, we
specifically found that allowing state courts to impose
additional remedies for violations of Section 315(b)
might discourage broadcasters from carrying politi-
cal advertising, thereby frustrating Congress's in-
tent to foster dissemination of information regarding
political campaigns. 48. We reject petitioners' sugges-
tion' that the doctrine of primary jurisdiction is an
appropriate vehicle to ensure uniformity in this area.
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61a
c. State Actions as an Obstacle to the Realization of the
Frill Objectives of Congress
19. Finally, petitioners maintain that state actions
would not stand as an obstacle to the realization of the
full objectives of Congress in enacting, Section 315(b),
but rather would serve Congress's goal of reducing
campaign spending. 49. In this regard, petitioners claim
that administrative remedies available from the Com-
mission would not be as effective because the Com-
mission does not have authority to order that broad-
casters pay refunds to candidates who are
overcharged. 50.
20. Petitioners' argument ignores the breadth of
the Commission's authority in this area. The Com-
mission has a wide range of tools, including the
authority to require rebates for overcharges, to
ensure effective and uniform enforcement of Section
315(b). The Commission has upheld Mass Media
Bureau actions in which rebates had been required
and no broadcaster has ever challenged that author-
ity. 51. Section 315(b) itself mandates that charges to
candidates "shall not exceed" the lowest unit charge,
and the Commission is charged with the respon-
sibility to execute and enforce the Act's provisions. 52.
In addition, Section 4(i) of the Act expressly author-
izes the Commission to issue such orders "not in-
consistent with this Act, as may be necessary in the
execution of its functions." 53. Requiring broadcasters
to return overcharges to candidates effectuates the
express requirement of Section 315(b) and is well
within the Commission's authority. "The United
States Court of Appeals for the District of Columbia
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62a
Circuit has held in a different regulatory context that
Section 4(i) authorizes the Commission to order
refunds to enforce statutory requirements in the
absence of express refund authority. New England
Tel. & Tel. Co. v. FCC, 826 F.2d 1101 (D.C. Cir. 1987),
cart. denied, 490 U.S. 1039. (1989). 54. We conclude that
we may require refunds to enforce the lowest unit
charge provisions of Section 315(b) pursuant to our
authority under Sections 1, 4(i) and 315(d) of the Act. 55.
2. Preemption as an Exercise of the Commission's
Authority
21. As an independent basis for our action, we
explained that, regardless of whether Congress
expressly or by implication preempted state law
claims based upon alleged violations of Section 315(b),
substantial judicial precedent establishes that the
Commission itself has authority to preempt such
claims. See, e.g., City of New York v. FCC, 486 U.S.
57 (1988); Fidelity Federal Savings & Loan Ass'n. v.
de la Cuesta, 458 U.S. 141 (1982). Consistent with
this precedent, we concluded that preemption was
well within our delegated authority under the Com-
munications Act to enforce Section 315(b) and was
necessary to achieve our purpose of ensuring uniform
standards for interpreting and enforcing the lowest
unit charge requirement. Accordingly, we exercised
our independent authority to preempt state causes of
action involving breaches of duties arising under
Section 315(b) and declared that the Commission shall
be the sole forum for adjudicating such matters. 56.
22. Petitioners argue that the Commission lacks
authority to confer upon itself exclusive jurisdiction
over Section 315(b) matters. 57. It is beyond dispute, of
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63a
course, that "[a]n agency may not confer power upon
itself." Louisiana Public Service Commission v.
FCC, 476 U.S. 355, 374 (1986). 58. However, in
preempting state causes of action related to Section
315(b), we are in no way conferring power upon
ourselves but rather are acting pursuant to the
authority granted us by Congress. As we explained in
the Declaratory Ruling, the Communications Act's
regulatory scheme setting forth Commission author-
ity to enforce the Act, and the provisions of Section
315 specifically, provide the necessary delegation of
authority to support our decision to preempt. 59.
Consistent with City of New York and other
Supreme Court decisions, the Commission may in
proper circumstances determine "that its authority,
is exclusive and pre-empts any state efforts to
regulate in the forbidden area." 60. In preempting state
causes of action involving breaches of duties arising
under Section 315(b) and declaring that the" Com-
mission shall be the sole forum for adjudicating such
matters, we acted squarely within the authority
delegated to us by Congress and in harmony with the
standards enunciated by the Supreme Court in City of
New York and related decisions. 61.
23. Finally, petitioners' attempts to distinguish
City of New York and de la Cuesta are unavailing. 62.
Petitioners maintain that, unlike the situation in
those cases, here there is no conflicting state policy
with respect to Section 315(b). To the contrary, as
discussed above, we conclude that a multiplicity of
state court rulings almost certainly would produce
varying and possibly conflicting determinations
among state courts and between those courts and the
Commission. 63. Such a result necessarily would frus-
trate federal interpretation and enforcement of
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64a
Section 315(b). Just as importantly, it would conflict
with Congress's objective to create a unified scheme
of regulation for communications by vesting in the
Commission exclusive jurisdiction to enforce the Act,
thereby leading to uniformity, certainty and consis-
tency with respect to the lowest unit charge and
other requirements of the Act. Additionally, incon-
sistent state court determinations of liability and
remedies under Section 315(b) might well discourage
broadcast stations from accepting political advertise-
ments, thus frustrating a central congressional
policy underlying Section 315(b) of encouraging
greater and less costly access for candidates to broad-
cast facilities. 64. We therefore affirm our preemption
decision.
B. Procedures Governing Complaints Alleging Section
315(b) Violations
24. In the Declaratory Ruling, we found that
setting out a procedural framework for ruling on
Section 315(b) complaints "will further our ability to
promptly and fairly dispose of Section 315(b)
complaints brought to us as a consequence of this
ruling . . . . " 65. Accordingly, we established procedures
which set forth pleading requirements for making a
prima facie case, established pleading timetables,
provided for limited discovery of station records
pertaining directly to the complaint, and offered
parties the opportunity to pursue mediation as an
alternative to adjudication of a complaint by the Mass
Media Bureau. 66. As discussed below, we affirm those
procedures in their entirety.
25. Petitioners contend that the procedures set
forth in the Declaratory Ruling are inadequate be-
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65a
cause they are not the same as those afforded
litigants under state law and the Federal Rules of
civil Procedure. 67. However, there is no requirement
in either the Communications Act or the Adminis-
trative Procedure Act ("APA'') 68. that the Commis-
sion's procedures replicate procedures available to
civil litigants in state or federal courts, and
petitioners offer no authority for such a proposition.
Civil court procedures necessarily are drafted broad-
ly so as to accommodate a wide variety of civil causes
of action. In contrast, we are concerned here with
alleged violations of a specific provision of the
Communications Act. On the basis of our experience
in enforcing Section 315(b), we were able to craft
procedures designed expressly to facilitate resolution
of such claims. 69.
26. We likewise reject petitioners' assertion that
our Section 315(b) procedures conflict with the APA
and the Commission's existing procedural rules. 70.
Section 315 does not require lowest unit charge
disputes to be determined "on the record after
opportunity for an agency hearing." 71. The procedures
governing adjudications and hearings specified in
Section 554 and 556 of the APA 72. thus are not re-
quired in Section 315(b) cases. Moreover, we do not
anticipate the need to hold formal adjudicatory hear-
ings in the majority of complaints arising under
Section 315(b). Petitioners' claim that our Section
315(b) procedures differ from other procedures
specified in our rules is irrelevant. 73. The Commission
has broad authority to establish individually tailored
procedures to carry out its responsibilities under the
Act, including the enforcement of Section 315. 74. In
other contexts, we have crafted procedural require-
ments governing specific types of complaints which
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66a
differ from our procedural rules governing pleadings
generally or our rules governing formal hearings. 75.
27. Contrary to petitioners' claims, 76. the
procedures set forth in the Declaratory Ruling fully
protect the rights of parties and should facilitate
timely and fair resolution of such complaints, thus
advancing the interests of the parties and the public
interest. These procedures are tailored to address
the specific factual and legal issues that arise. in
Section 315(b) disputes. For example, at the heart of
any Section 315(b) dispute is whether the station has
charged the complaining candidate the "lowest unit
charge" as prescribed by the statute. Accordingly,
our procedures provide for limited discovery designed
to enable the candidate to examine station records
directly pertaining to this issue, while protecting
broadcasters from potentially harmful public dis-
closure of proprietary information or the identity of
their advertising customers. In this manner, our
procedures are designed to protect the legitimate
interests of both parties to the complaint. If actual
experience indicates areas where our Section 315(b)
procedures should be revised, we will revisit them. 77.
IV. CONCLUSION
28. We have reviewed petitioners' arguments and
conclude that they do not support reconsideration of
the Declaratory Ruling. We thus affirm our prior
ruling in its entirety, including our holding that fed-
eral law preempts state causes of action dependent on
any determination of the lowest unit charge or any
other duty arising under Section 315(b) of the Com-
munications Act.
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67a
V. ORDERING CLAUSES
29. Accordingly, IT IS ORDERED, pursuant to
Section 405 of the Communications Act of 1934, as
amended, 47 U.S.C. 405, that the petitions for
reconsideration filed on January 15, 1992, by certain
candidates for political office in Georgia and Alabama
and their respective campaign committee: ARE
DENIED.
30. IT IS FURTHER ORDERED, pursuant to-
Sections 1, 4(i) and (j), 303(r), and 315(b) and (d) of the
Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i) and (j), 303(r), and 315(b) and (d); Section
5(e) of the Administrative Procedure Act, 5 U.S. C.
556(e); and Section 1.2 of the Commission's rules, 47
C.F.R. 1.2, that the Declaratory Ruling in this
proceeding IS AFFIRMED.
FEDERAL COMMUNICATIONS COMMISSION
Donna R. Searcy
Secretary
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68a
APPENDIX
Petitions for Reconsideration
1. Zen Miller, Zen Miller for Governor, Pierre
Howard, Georgians For Howard '90, Johnny Isakson,
Johnny Isakson For Governor, Andrew Young, Young
Working For Georgia, Lauren McDonald, Lauren
McDonald For Governor, Roy Barnes, Roy Barnes
For Governor, Tim Ryles, Tim Ryles For Insurance
Commissioner, Warren Evans, Warren Evans
Election Committee, William L. Dickinson, Second
District Campaign Committee, William J. Cabaniss,
Friends of Bill Cabaniss Committee, Ronnie Flippo,
Flippo for Governor Committee, Spencer T. Bachus,
III, Bachus for Attorney General Committee, John
Teague, Jeremiah A. Denton, Denton for Senate
Committee, James E. Folsom, Jr., Jim Folsom, Jr. for
Lieutenant Governor Committee, Fob James, Fob
James for Governor Committee, Kenneth D. Wallis,
Alabamians for Ken Wallis Committee, George D.H.
McMillan, Jr., The McMillan Committee, George
Wallace, Jr., Wallace for Treasurer Committee,
Charles A Graddick, Graddick for Governor
Committee, William J. Baxley, Friends of Bill Baxley,
Paul Hubbert, Richard Shelby, Don Siegelman,
Jimmy Sullivan, candidates for public office in
Georgia and Alabama and their respective campaign
committees (January 15, 1992)
2. Sonny Hornsby, Friends of E.C. Sonny Hornsby,
Mark Kennedy, Judge Mark Kennedy for Supreme
Court and Friends of Judge Mark Kennedy (adopting,
incorporating and joining the petition for
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69a
reconsideration of Zen Miller, et al.) (January 15,
1992)
Oppositions
1. Capital Cities/ABC, Inc., Chris-Craft Indus-
tries, Inc., and the Times Mirror Company (March 5,
1992)
2. A.H. Belo Corporation, Booth American Com-
pany, Cosmos Broadcasting Corporation, Cox Enter-
prises, Inc., Evening Post Publishing Company and
River City License Partnership (March 6, 1992)
3. American Family Broadcast Group, Inc.,
Tribune Broadcasting Company, Great American
Television and Radio Company, Inc., Kelly Broad-
casting Company, Kelly Television Company,
McGraw-Hill Broadcasting Company, Inc., The New
York Times Company, SCI Television, Inc., WTVT,
Inc., Gillett Broadcasting of California, Inc., National
Association of Broadcasters, Westinghouse Broad-
casting Company, Inc., The Spartan Radiocasting
Company, The Providence Journal Company,
Post-Newsweek Stations, Inc., and Fox Television
Stations Inc. (March 6, 1992)
Reply
1. Zen Miller, et al., candidates for public office in
Georgia and Alabama and their respective campaign
committees (March 20, 1992)
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70a
FOOTNOTES
1 6 FCC Rcd 7511 (1991).
2 Section 315(b) provides that a broadcast station's
charges for advertising time purchased by candidates
for political office during certain specified periods
before primary and general elections may not exceed
"the lowest unit charge of the station for the same
class and amount of time for the same period." At all
other times, the charges to such candidates may not
exceed "the charges made for comparable use of such
station by other users," 47 U.S.C. 315(b). Section
315(b) applies both to over-the-air broadcast stations
and cable system operators. See 47 U.S.C. 315(c).
The terms "broadcast stations," "broadcasters," or
"licensees," as used in this document, are thus meant
to include cable operators as well.
3 See Codification of the Commission's Political
Programming Policies, MM Docket No. 91-168, 7
FCC Rcd 678 (1991), Erratum, 7 FCC Rcd 920
(M.M.B. 1992), reconsidered in part, 7 FCC Rcd 1616
(1992), further reconsideration, FCC 92-210 (adopted
May 14, 1992).
46 FCC Rcd 5954 (1991), 56 Fed. Reg. 51895 (Oct. 16,
1991).
5 A summary of the Declaratory Ruling was
published in the Federal Register on January 14,
1992.57 Fed. Reg. 1478 (1992).
6 Declaratory Ruling, 6 FCC Rcd at 7511, para. 1.
7 Id.
8 Id., 6 FCC Rcd at 7513, paras. 17-19.
9 Id., 6 FCC Rcd at 7513-14, paras. 21-25.
1057 Fed. Reg. 6121 (Feb. 20, 1992).
11 47 C.F.R. 1.429 (1991).
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71a
12 A list of persons joining in the petitions for
reconsideration and the oppositions is attached as an
appendix. Further references herein to "petition" or
"petitioners'' refer to the petition filed by Zen Miller. _.
et al., since the petition filed by Sonny Hornsby et al.
offers no separate substantive arguments but rather
adopts, incorporates and joins the Zen Miller
pleading.
13 Declaratory Ruling, 6 FCC Red at 7511-12, paras.
7-8. 14 Petition at 2-5.
15 6 FCC Rcd at 7511-12, paras. 7-8 (citing, among
other statutory provisions, Section 315(d) of the Act).
16 6 FCC Red at 7511, para. 7.
17 Declaratory Ruling, 6 FCC Rcd at 7512, para. 8
n.17 (citing S. Rep. No. 96, 92d Cong., 1st Sess. (1971),
reprinted in 1972 U.S. Code Cong. & Ad. News 1773,
1786). Petitioners assert that this passage from the
Senate report is considered out of context and refers
to the spending limitations contained in the
legislation rather than Section 315(b). Petition at
9-10. The Commission's Chairman, however, was
referring to enforcement of the legislation's
broadcast provisions, of which the lowest unit charge
requirement of current Section 315(b) was an integral
part. There would have been no reason for the
Commission's Chairman to testify about FECA'S
spending limitations, because the Commission has no
jurisdiction over those provisions.
18 See Declaratory Ruling, 6 FCC Rcd at 7512,
para. 14 (quoting S. Rep. No. 96, 92d Cong., 1st Sess.
(1971), reprinted in 1972 U.S. Code Cong. & Ad. News
at 1774).
19 See 47 U.S.C. 315(d) (directing the FCC to
"make rules and regulations to carry this provision
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72a
[Section 315] into effect."); Declaratory Ruling, 6
FCC Rcd at 7512, paras. 8, 11.
20 Kay v. FCC, 443 F.2d 638, 643-44 (D.C. Cir. 1970).
21 See Petition at 8-9.
22 See Sutherland Stat. Const. 22.34 (4th Ed.)
(amendment should be, construed together with
unchanged provisions of original section); id. at
22.35 (amendment should be construed as if part of
original enactment).
23 47 U.S.C. 315(b) (1952).
24 633 F.2d 393 (5th Cir. 1980).
25 See Petition at 7-8.
26 6 FCC Rcd at 7512, para. 8 n.17.
27 As we have pointed out, moreover, Section 315(b)
restricted the charges broadcasters could assess for
political advertisements long before FECA was
adopted.
28 47 U.S.C. 414.
29 See Petition at 6-7.
30 Zell Miller for Governor v. Pacific & Southern
Co., Inc., No. 1:91-CV-267-RLV, slip op. at 11-12 (N.D.
Ga. June 4, 1991); Declaratory Ruling, 6 FCC Red at
7513, para. 20 & n. 44.
31 Id., 6 FCC Red at 7513, para. 20 & n. 45. See
Arrow Transp. CO. v. Southern R. Co., 372 U.S. 658,
671 n. 22 (1963); Comtronics, Inc. v. Puerto Rico Tel.
Co., 553 F.2d 701,707-8 n.6 (1st Cir. 1977).
32 Declaratory Ruling, 6 FCC Rcd at 7513, para. 20
& n.43 (citing Texas & Pacific Railroad Co. v.
Abilene Cotton Oil Co., 204 U.S. 427 (1907);
Pennsylvania Railroad v. Puritan Coal Mining
Co., 237 U.S. 121, 129 (1915); In re Long Distance
Telecommunications Litigation, 831 F.2d. 627 (6th
Cir. 1987); Comtronics, Inc., 553 F.2d at 707-08 n.6 (1st
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73a
Cir. 1977); Blackburn v. Doubleday Broadcasting,
Inc., 353 N.W.2d 550 (Minn. 1984)).
33 In Kalo Brick, the Supreme Court held that a
state statutory remedy and certain common law
causes of action for damages against a railroad
carrier were preempted despite a savings clause in
the Interstate Commerce Act containing language
identical to that contained in Section 414 of the
Communications Act.
34 Declaratory Ruling, 6 FCC RCd at 7513, para. 15.
35 Petitioners' reliance on Nader v. Allegheny
Airlines, Inc., 426 U.S. 290 (1976), and similar cases
is misplaced. See Petition at 7 n.2. In Nader, the
Supreme Court held that a common law action for
fraudulent misrepresentation against an air carrier
need not be stayed pending reference to the Civil
Aeronautics Board for determination whether the
practice is deceptive within the meaning of the
Federal Aviation Act. Emphasizing that a violation of
the relevant statutory provision was not coextensive
with a breach of duty under the common law, the
Court found no "irreconcilable conflict between the
statutory scheme and the persistence of common law
remedies." Id., 426 U.S. at 299. Thus, in Nader and
other cases cited by petitioners, the alleged breach of
duties under state law were distinguishable from
those created under federal law and involved different
elements of proof. See, e.g., Nepera Chemical, Inc. v.
Sea-Land Service, Inc., 794 F.2d 688 (D.C. Cir. 1986);
Bruss Co. v. Allnet Communication Services, Inc.,
606 F.Supp. 401 (N.D. 111. 1985); Kaplan v,. ITT-US
Transmission Systems Inc., 589 F. Supp. 729 (E.D
N.Y. 1984). In contrast, we held in the Declaratory
Ruling that state causes of action are preempted to
the extent they involve alleged breaches of duty under
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74a
state law that are dependent on proof of a violation of
some duty arising under Section 315(b). That is,
unlike in Nader, we are dealing with causes of action
for which no conceivable liability may attach under
state law without the central finding of a Section
315(b) violation. Indeed, petitioners do not even
attempt to demonstrate that the state causes of action
they espouse are distinct from complaints of Section
315(b) violations. Petitioners acknowledge instead
that their objective is to provide "a convenient [state]
forum for candidates to seek redress for alleged
violations of Section 315(b)." Petition at 16.
Petitioners' objection to the Declaratory Ruling
thus is based fundamentally on their view that
"Congress did not intend to give the Commission
exclusive jurisdiction over such [Section 315(b)]
claims." Petition at 5. We accordingly conclude that
Nader and similar cases are not controlling here.
36 Declaratory Ruling, 6 FCC Rcd 7512, para. 12.
We discussed this concern primarily in the context of
our discussion in the Declaratory Ruling regarding
the exercise of our independent authority to preempt
in order to achieve the purpose of developing uniform
standards for interpreting and enforcing Section
315(b). Furthermore, whatever the potential for
inconsistent interpretations of Section 315(b),
Congress centralized in the Commission implemen-
tation and enforcement authority with respect to the
Communications Act generally and Section 315
specifically, and thus impliedly preempted state
causes of action involving breaches of duties arising
under Section 315(b).
37 Petition at 10-15; Reply at 3.
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75a
38 S. Rep. No. 96, 92d Cong., 1st Sess. (1971),
reprinted in 1972 U.S. Code Cong. & Ad. News at
1780.
39 See Codification of the Commission's Political
Programming Policies, 7 FCC Rcd at 687-98, paras.
50-119; 7 FCC Red at 701-2 (Appendix B) (text of new
rule concerning the lowest unit charge requirement
to be codified at 47 C.F.R. 73.1942).
40 We do not suggest, of course, that state counts
are incapable of resolving such "complicated"
questions. Our point is that uniformity and certainty
in this area are such important considerations that
the entire enforcement function has been centralized
in this agency. State courts could resolve lowest unit
charge questions in a manner that would be perfectly
reasonable in the abstract but unacceptably
inconsistent with the Commission's standards for
enforcement of Section 315(b).
41 Petitioners cite Tafflin v. Levitt,. 493 U.S. 455
(1990), and Pan American Petroleum Corp. v.
Superior Court of Delaware, 366 U.S. 656 (1961), for
the proposition that the availability of Supreme Court
review of any erroneous state court decisions
obviates the need for federal preemption. See Petition
at 13. Those cases, however, involved questions of
whether state courts had concurrent jurisdiction
with federal courts, not, as here, whether state courts
are preempted from acting in an area where Congress
has given a single federal agency exclusive
jurisdiction over an area of regulation. See, e.g., FCC
v. Pottsville Broadcasting Co., 309 U.S. 134, 137
(1940) (in adopting the Communications Act,
Congress "formulated a unified and comprehensive
regulatory system for the [broadcasting] industry" to
be administered by the FCC).
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76a
42 Final decisions of the Commission concerning
Section 315(b), including this declaratory ruling, are
of course subject to judicial review by the United
States Court of Appeals and, ultimately, the United
States Supreme Court. 47 U.S.C. 402(a); 28 U.S.C.
2342(1).
43 See Petition at 13-14 & n.7.
44 See Section III.A.2., infra.
45 The eases cited by petitioner involving state
court construction of federal statutes do not involve
situations where, as here, Congress has given
exclusive jurisdiction to a federal regulatory agency,
and thus are inapposite. See Petition at 14 n.7.
Moreover, in those cases the courts found that the
causes of action at issue were clearly based on state
law and the alleged violation of federal law was
"merely one of the props" utilized to support the state
law claim. Owens v. New York Central Railroad
Company, 267 F. Supp. 252, 255 (E.D. III. 1967) (cause
of action grounded in negligence). See, e.g., Moore v.
Chesapeake & Ohio Railway Co., 193 U.S. 205 (1934)
(relevant cause of action based on state statute which
incorporated language from similar federal statute);
Moody v. McDaniel, 190 F.Supp. 24 (N.D. Miss. 1960)
(cause of action based on state wrongful death
statute); Tri-State Motor Transit Co. v. Maclif
Industries, 534 F. Supp. 283 (S.D. Tex. 1982) (court .
held that cause of action may be resolved wholly in
terms of principles of state common law of contract).
Here, in contrast, the lawsuits at issue derive
fundamentally from Section 315(b)'s lowest unit
charge requirement, not from existing state common
or statutory law.
46 United States v. Western Pacific Railroad Co.,
352 U.S. 59, 64 (1956).
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77a
47 Indeed, in recent state court litigation involving
Section 315(b), the court, supported by certain of the
petitioners in this proceeding, refuses a request by
the Commission to invoke the doctrine of primary
jurisdiction and defer to the agency on the issue of
liability. See Dickinson v. Cosmos Broadcasting Co.,
No. CV-91-67-P (Ala. Cir. Ct. Sept. 23, 1991). The
Commission suggested a primary jurisdiction
referral in that case because it had not yet considered
whether state actions were preempted.
48 Declaratory Ruling, 6 FCC Red at 7513, para. 19.
49 Petition at 15-16.
50 Id.; see also Petition at 23-24.
51 See, e.g., Outlet Communications, Inc., 5 FCC
Rcd 2835 (M.M.B. 1990), affirmed, 7 FCC Rcd 632
(1992); Alfa Broadcasting Corp., 55 RR 2d 599
(M.M.B.), review denied, 102 FCC 2d 18 (1984). See
also Chronicle Publishing Co., 6 FCC Rcd 7497, 7499
(1991) (directing licensee to advise Commission of
actions taken to refund Section 315(b) overcharges);
South Arkansas Radio Company, 5 FCC Rcd 4643,
4643 (M.M.B. 1990) (requiring rebates of Section
315(b) overcharges).
52 See 47 U.S.C. 315(d). See also Section 1 of the
Act, 47 U.S.C. 151.
53 47 U.S.C. 154(i).
54 The fact that Title III of the Act relating to
broadcasters does not mirror the remedial procedures
for common carriers specified in Title II,. which
include an express provision for damages in some
circumstances, does not change our conclusion. See
Petition at 5-6. In New England Telephone, the court
held that, pursuant to Section 4(i), the Commission
may require carriers to refund earnings in excess of
a Commission-prescribed authorized rate-of-return
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78a
even though refunds are not expressly authorized,
and even though another part of Title II expressly
permits an award of damages against carriers for
other types of violations. Thus, the mere fact that one
part of the Act expressly provides for damages does
not justify an inference that the Commission's
authority under Section 4(i) is not broad enough to
permit the Commission to order refunds in other
circumstances, especially where refunds are
necessary in order to achieve compliance with the
Act's express requirements. Petitioners' citation to
TVA v. Hill, 437 U.S. 153, 188 (1978), is inapposite.
Under the Endangered Species Act at issue in that
case, Congress had acted to limit the reach of the
statute in certain well-defined instances, and the
court recognized such congressional exceptions to
federal jurisdiction. In the Communications Act, in
contrast, Congress has granted the Commission
broad and exclusive power to implement and enforce
the provisions of Section 315(b) without exceptions.
55 Further, as we explained above in Section
III.A.1.b, the prospect of differing remedies imposed
by various state courts would frustrate the
congressional goals of uniformity and certainty in the
application and enforcement of Section 315(b) and
might well impede, rather than foster, the
dissemination of information regarding political
campaigns favored by Congress. Moreover, we are not
persuaded by petitioners' argument that our
preemption decision unfairly requires candidates
around the country to litigate their claims in
Washington, D.C. before the Commission rather than
in more convenient state courts. See Petition at 16;
Reply at 5-6. We perceive no hardship in requiring
candidates to file their complaints with the
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79a
Commission in accordance with the procedures
established in the Declaratory Ruling. We-anticipate
that most such claims can be adjudicated on the basis
of a written record and would not require travel to
Washington.
56 Declaratory Ruling, 6 FCC R-cd at 7512-13, paras.
9-16.
57 Petition at 16-20.
58 The Louisiana case, of course, involved statutory
language in which the Court held that Congress
expressly had denied power to the Commission to
regulate the activity in question. 486. U.S. at 374. It
was in that context that the Court asserted that the
agency "may not confer power upon itself." Neither
Section 315 nor any other provision of the Act denies
the Commission power over the lowest unit charge
requirement. On the contrary, the Act establishes
the Commission as the enforcer of that requirement.
59 6 FCC Rcd at 7512, para. 11.
60 486 U.S. at 64 (citing Capital Cities Cable, Inc. v.
Crisp, 467 U.S. 691, 700 (1984), and de la Cuesta, 458
U.S. at 152-54).
61 petitioners maintain that "whether a state cause
of action is pre-empted by federal law is not
determinative of whether judicial remedies to enforce
possible federal causes of action should be foreclosed.
Exclusive jurisdiction and pre-emption are two
entirely different things." Petition at 18. However,
we expressed the view in the Declaratory Ruling
that Section 315(b) does not give rise to a private
federal cause of action and that any federal lawsuit
based directly upon allegations of violations of
Section 315(b) therefore should be dismissed. 6 FCC
Rcd at 7511, para. 5 n.8, and 7512,. para. 8 n.17.
Consistent with our expressed view, a federal district
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80a
court on its own recently determined that it lacked
subject matter jurisdiction over an action predicated
on alleged violations of Section 315(b) and dismissed
the case. Pete Wilson v. A.H. Belo Corp., No. CIV
S-91-1206 LKK (E.D. Cal. April 27, 1992).
62 Petition at 19-20.
63 See Section 111. A.1.b., supra Declaratory Ruling,
6 FCC Rcd at 7512, para. 12.
64 Declaratory Ruling, 6 FCC Rcd at 7512, para. 14.
See Farmers Educational & Coop. Union v. WDAY,
Inc., 360 U.S. 525, 534-35 (1959).
65 6 FCC Rcd at 7513, para. 21.
66 Declaratory Ruling, 6 FCC Rcd at 7513-14, paras.
21-25.
67 Petition at 22-23.
68 5 U.S.C. 551-559.
69 Petitioners also suggest that the Declaratory
Ruling creates uncertainty as to the applicable
statute of limitations for Section 315(b) complaints
and "can potentially be read to shorten the amount of
time which would otherwise be applicable under state
law." Petition at 22. As petitioners note, however, the
Commission did "not specif[y] a specific statute of
limitations." Id. Rather, we stated "[a]s a matter of
general policy" that "complainants should file lowest
unit charge complaints in a timely manner."
Declaratory Ruling, 6 FCC Rcd at 7513, para. 22 n.46.
We note that licensees are accountable for their
performance throughout their five-year or seven-year
license terms, 47 U.S.C. 307, and are subject to
forfeitures for up to three years following a violation
of the Act, 47 U.S.C. 503. However, licensees are
required by our regulations to retain political file
documents only for a period of two years. 47 C.F.R.
73.1943(c) (formerly codified at 47 C.F.R. 73.1940).
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81a
70 Petition at 20-22.
71 5 U.S.C. 554.
72 See 5 U.S.C. 554, 556.
73 See Petition at 20-21. Petitioners refer to
existing procedural rules governing pleadings
generally and other rules addressing formal hearings
before administrative law judges.
74 See 47 U.S.C. 315(d); see also 47 U.S.C. 154(i),
(j).
75 See, e.g., 47 C.F.R. 1.720-1.734 (1991)
(procedures governing formal complaints brought
against common carriers under Section 208); 47
C.F.R. 1.1401-1.1415 (1991) (procedures governing
pole attachment complaints brought under Section
224).
76 See, e.g., Reply at 5-8.
77 In any event, we note that the adequacy and
lawfulness of our procedures governing complaints
brought under Section 315(b) has no bearing on our
preemption analysis set forth in Sections III.A,
supra. Any infirmities in the Section 315(b)
procedures would not justify alteration of our
decision to preempt state causes of action involving
breaches of duties arising under Section 315(b).
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SEPARATE STATEMENT OF
COMMISSIONER JAMES H. QUELLO
In re: Exclusive Jurisdiction With Respect to Potential
Violations of the Lowest Unit Charge Requirements of
Section 315(b) of the Communications Act of 1934, as
amended.
I fully agree with the Commissions reaffirmation
of the Declaratory Ruling and the denial of the
petitions for reconsideration. I am writing separately
only to clarify one issue regarding the procedures for
filing complaints.
In the current Order, the Commission notes that
"we reaffirm those procedures in their entirely."
Order on Reconsideration at "Par." 24. Because I dis-
sented from the procedural section of the Declaratory
Ruling, I am somewhat less enthusiastic in my
support. Thus, I agree with the current Order
insofar as it dismisses petitions that would reduce
due process safeguards-but I do not now endorse the
procedures "in their entirety."
As I noted in my separate statement accompanying
the Declaratory Ruling:
[A]lthough the Ruling expresses concern with
the administrative burden created by complaints,
it establishes a new multi-stage procedure that
includes a complaint, discovery, an amended com-
plaint and several levels of Commission decisions
including the possibility of hearings.
I dissent from the hastily made decision to adopt
procedures because we do not yet know whether
the new guidelines will help or make matters
worse. Will the new procedures allow candidates
---------------------------------------- Page Break ----------------------------------------
to make a prima facie case obtain quick relief or
will they delay matters? Will they encourage the
filing of speculative complaints, thus requiring
the application of settlement limits? Will the
number of complaints diminish now that the Com-
mission is clarifying the political rules or will the
volume of complaints under the new procedures
create an administrative nightmare? We simply
do not know.
Declaratory Ruling, 6 FCC 7511, 7516-17 (1991)
(Separate Statement of Commissioner James H.
Quello, dissenting in part) (citation omitted).
Although such questions apparently did not trouble
the Commission in this case, we have expressed
similar concerns in the past:
Each year the Commission receives a sub-
stantial number of petitions or complaints against
broadcast licensees. Although we would not anti-
cipate that every petitioner or complainant would
request discovery, it seems clear to us that if a
substantial number did so it would require an
inordinate amount of time and effort to determine
whether the requests would properly lie for the
production of such records.
Citizens Communications Center, 61 F.C.C.2d 1112,
1126-27 (1976).
Such problems were avoided, it seems to me, under
our previous approach for handling complaints. The
U.S. Court of Appeals for the D.C. Circuit has noted
that "the FCC generally has elected to resolve
factual uncertainties by conducting its own inquiry,
rather than by affording petitioners discovery."
Bilingual Bicultural Coalition on Mass Media Inc.
v. FCC, 595 F.2d 621, 634 (D.C. Cir. 1978) (en banc).
---------------------------------------- Page Break ----------------------------------------
84a
"For several reasons," according to the court, "this
usually will be the preferable course: the Commis-
sion's questions are likely to be more expert, the
licensees' answers more uniform and comparable. In
addition, licensee cooperation is likely to be fuller and
more prompt." Id.
I have seen nothing in the record of this proceeding
to dispute these points. Indeed, the Commission inex-
plicably found it unnecessary even to entertain com-
ments on the procedural issue.
With respect to this issue, however, the current
Order only dismisses petitions seeking to eliminate
procedural safeguards. In that result, I can agree.
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85a
DISCLOSURE STATEMENT PURSUANT TO RULE 29.6
A.H. Belo Corporation has no parent corporation or
non-wholly owned subsidiaries.
Allbritton Communications Corporation's parent
corporation is Perpetual Corporation. Allbritton has
no non-wholly owned subsidiaries.
American Family Broadcast Group, Inc. has no parent
corporation or non-wholly owned subsidiaries.
Capital Cities/ABC, Inc.'s parent corporation is Walt
Disney Co. and it identifies the following as its only
non-wholly owned subsidiary: Worldwide Television
News Corp.
Chris-Craft Industries, Inc. has no parent
corporation or non-wholly owned subsidiaries.
Chronicle Publishing Co., Inc. is a subsidiary of Twin
States Publishing Co., Inc. which is in turn a
subsidiary of Nixon Enterprises, Inc. Chronicle
Publishing Co. has no non-wholly owned subsidiaries.
Citicasters Co. is a subsidiary of Great American
Broadcasting Co. which is in turn a subsidiary of
Citicasters Inc. Citicasters Co. has "no non-wholly
owned, subsidiaries.
Cox Enterprises, Inc. has no parent corporation and
identifies the following as its non-wholly owned
subsidiaries: Cox Cable Spokane Inc.; Manheim
Auctions, Inc. (a subsidiary of Cox Communications
Inc., which is in turn a subsidiary of Cox Enterprises,
Inc.); and Manheim Investments, Inc. (a subsidiary of
Cox Communications Inc., which is in turn a
subsidiary of Cox Enterprises, Inc.).
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86a
Fox Television Stations, Ins.'s parent corporation is
News Corp. Limited and it has no non-wholly owned
subsidiaries.
LIN Television Corporation's parent corporation is
AT&T Corp. and it has no non-wholly owned
subsidiaries.
McGraw-Hill Broadcasting Co.'s parent corporation
is McGraw-Hill Inc. and it has no non-wholly owned
subsidiaries.
Meredith Corporation has no parent corporation or
non-wholly owned subsidiaries.
Midwest Television, Inc. has no parent corporation or
non-wholly owned subsidiaries.
National Association of Broadcasters has no parent
corporation or non-wholly owned subsidiaries.
National Broadcasting Co., Inc.'s parent corporation
is General Electric Company and it has no non-wholly
owned subsidiaries.
New World Television Inc.'s parent corporation is
New World Communications Group Inc. and it has no
non-wholly owned subsidiaries.
New York Times Co., Inc. has no parent corporation
or non-wholly owned subsidiaries.
Post-Newsweek Stations Inc.'s parent corporation is
Washington Post Co., Inc. and it has no non-wholly
owned subsidiaries.
Providence Journal Broadcasting Co. has no parent
corporation of non-wholly owned subsidiaries.
WKRG-TV, Inc. has no parent corporation or non-
wholly owned subsidiaries.
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87a
APPENDIX D
Before the
Federal Communications Commission
Washington, D.C. 20554
PUBLIC NOTICE
Released: October 10, 1991
NOTICE OF INTENTION TO ISSUE DECLARATORY
RULING WITH RESPECT TO EXCLUSIVE
AUTHORITY OF FCC TO DETERMINE WHETHER
BROADCASTERS HAVE VIOLATED LOWEST UNIT
CHARGE REQUIREMENT OF SECTION 315(B)
Comment Period Establish
Comments due: October 21, 1991
The Commission is considering issuing on its own
motion a declaratory ruling confirming its earlier
conclusion that it has exclusive jurisdiction to deter-
mine questions of liability for violations of Section
315(b) of the Communications Act. News Release,
Report No. GN-74, June 6, 1991. The Commission also
is considering whether its exclusive jurisdiction
should extend beyond the basic liability question and,
if so, whether it should preempt any cause of action in
which an alleged violation of Section 315(b) is an
essential element. This Public Notice invites inter-
ested parties to cement on these issues by October
21, 1991.
---------------------------------------- Page Break ----------------------------------------
88a
Candidates for elective office in several states have
sued broadcast stations, on various legal theories, for
allegedly overcharging the candidates for political
advertisements. The lawsuits, some of them in state
courts and others in federal courts, are based ulti-
mately on allegations that the stations charged the
candidates more than the "lowest unit charge" or the
charge for "comparable use" of the station-stan-
dards that are set forth in Section 315(b) of the
Communications Act and enforced by the Federal
Communications Commission.
In one of these cases, the United States District
Court for the Northern District of Georgia held that
the Commission has exclusive jurisdiction to deter-
mine whether a station has violated Section 315(b). 1.
The court held further that the Commission's pro-
cedures are the exclusive remedy for violations of
Section 315(b). In particular, the court found that
state court complaints brought by candidates against
broadcasters for alleged violations of Section 315(b)
present a federal question and noted that "enforce-
ment of the [Communications Act] and vindication of
the public interest are vested in the Federal Com-
munications Commission." 2. Pointing to the "perva-
sive statutory and administrative scheme to enforce
section 315," the court cited cases in which the
Commission has ruled on candidates' complaints
about overcharges and in which rebates have been
ordered. 3. The court dismissed the complaint and
held that the Commission provides candidates an
exclusive remedy for violations of Section 315(b).
That decision is now on appeal to the United States
Court of Appeals for the Eleventh Circuit. 4.
In contrast, in a second case, the United States
District Court for the Middle District of Alabama
---------------------------------------- Page Break ----------------------------------------
89a
held that complaints filed in state court by political
candidates against broadcasters for, alleged adver-
tising overcharges did not present a federal question
warranting removal of the case by the defendants to
federal district court. 5. That court held that the
complaints were "essentially local to the state," even
though resolution of the claims probably would re-
quire some application of federal statutes and
regulations. 6. It accordingly remanded the case to the
Alabama state court for further proceedings.
In the wake of that remand, the Commission
appeared before the Alabama state court as amicus
curiae and argued that the issue of whether a
broadcaster had violated Section 315(b) was within the
exclusive primary jurisdiction of the FCC and should
be referred to the agency for determination. The
Commission stated that consistency in the applica-
tion and enforcement of Section 315(b) requires that
the Commission in every instance. make the basic
liability determination in cases alleging overcharges
for political advertisements. The Commission thus
concluded that, in order to fulfill its own responsi-
bilities under the Act, it must assert its exclusive
primary jurisdiction to determine the question of
liability. 7. Compare Capital Cities Cable, Inc. v.
Crisp, 467 U.S. 691, 700 (1984); City of New York v.
FCC, 486 U.S. 57, 63-64 (1988), citing Fidelity
Federal Savings and Loan Assn. v. De la Cuesta, 458
U.S. 141, 154 (1982). Nonetheless, although the Alaba-
ma state court recognized the Commission's "strong
interest" in enforcing Section 315(b), it has not
referred the liability determination to the Commis-
sion and has not stayed its own proceedings to permit
the agency to make such a determination. 8.
---------------------------------------- Page Break ----------------------------------------
90a
In view of the inconsistencies among these federal
and state court decisions and the likely proliferation
of similar suits in a number of jurisdictions, the
Commission is now considering issuing a declaratory
ruling to clarify its role in resolving these political
broadcasting controversies. It accordingly requests
cement on whether its jurisdiction to determine the
lawfulness of political advertising charges is exclu-
sive and whether federal and state courts must refer
the liability question to the FCC in any case alleging
that charges for political advertising are excessive.
The Commission also seeks comments on whether its
exclusive jurisdiction should extend beyond the basic
liability question and, if so, whether the Commission
should preempt any cause of action in any court in
which an alleged violation of Section 315(b) is an
essential element. 9.
Interested parties may file comments in this mat-
ter no later than October 21, 1991. Reply comments
will not be accepted, and no extensions of this com-
ment period are contemplated.
An original and four copies of all comments must be
filed in accordance with Section 1.51(c) of the
Commission's Rules. In addition, copies of each plead-
ing must be filed as follows: one copy with the
Downtown Copy Center (DCC), the Commission's
duplicating contractor, at its office in Room 246, 1919
M Street, N.W., Washington, D.C. 20554; one copy
with the Office of General Counsel, Room 614, 1919 M
Street, N.W., Washington, D.C. 20554; and one copy
with the Mass Media Bureau, Room 314, 1919 M
Street, N.W., Washington, D.C. 20554.
Copies of comments may be obtained from DCC.
The documents will be available for public inspection
and copying in Room 614, 1919 M Street, N.W.
---------------------------------------- Page Break ----------------------------------------
91a
For further information, contact Diane L.
Hofbauer, Office of General Counsel, at (202) 632-7020.
FEDERAL COMMUNICATIONS COMMISSION
---------------------------------------- Page Break ----------------------------------------
92a
SEPARATE STATEMENT OF CHAIRMAN ALFRED C.
SIKES AND COMMISSIONER ANDREW C. BARRETT ON
NOTICE OF INTENTION TO ISSUE DECLARATORY
RULING WITH RESPECT TO EXCLUSIVE AUTHORITY
OF FCC TO DETERMINE VIOLATIONS OF SECTION
315(B) OF COMMUNICATIONS ACT
We have no objection to asking whether or not the
Commission's exclusive jurisdiction can or should be
"extend[ed] beyond the basic liability question" of
whether there has been a violation of Section 315(b).
However, we write to emphasize that asking this
question should not be read as concluding that the
Commission has the ability or should exercise that
ability-to totally preempt state or federal judicial
proceedings with respect to both liability and dam-
ages in this area.
---------------------------------------- Page Break ----------------------------------------
93a
FOOTNOTES
1 Zen Miller for Governor, et-al. v. Pacific and
Southern Company, Civil Action No. 1:91-CV-267-
RLV (N.D. Ga.) (Order, released June 4, 1991).
2 Id., slip op. at 13, quoting Belluso v. Turner
Communications Corp., 633 F.2d 393, 397 (5th Cir.
1980).
3 Slip op. at 13-14, citing Hernstadt v. FCC, 677 F.2d
893 (D.C. Cir. 1980); Atlin Communications, Inc., 5
FCC Rcd 2835 (M.M.B. 1990); Southern Arkansas
Radio Co., 5 FCC Red 4643 (M.M.B. 1990).
4 No. 91-8561 (llth Cir., filed June 27, 1991).
5 William Dickinson v. Cosmos Broadcasting Co.,
Civil Action No. 91-T-072-N (M.D. Ala.) (Order, re-
leased April 1, 1991).
6 Id., slip op. at 17.
7 This exclusive jurisdiction over Section 315(b)
liability determinations, moreover, must be recog-
nized by both federal and state courts.
8 See William L. Dickinson v. Cosmos Broad-
casting Co., Circuit Court for Montgomery, Alabama,
Case No. CV-91-67-P (Order, released September 23,
1991). It was "significant" to the state court that the
Commission "has not taken a position here that the
claims of the Plaintiffs are preempted by the Com-
munications Act." Slip op. at 3. That order denied
motions to dismiss, filed by the defendants, arguing
that state court actions for overcharges for political
advertising were preempted. The defendants have
asked the Alabama Supreme Court to review the
denial of their motions to dismiss.
9 In this regard the Commission believes it would be
advisable for courts to stay any ongoing proceedings
---------------------------------------- Page Break ----------------------------------------
94a
pending the issuance of any declaratory ruling as a
result of this notice.
---------------------------------------- Page Break ----------------------------------------
No. 95-1200
In the Supreme Court of the United States
OCTOBER TERM, 1995
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS
v.
ZELL MILLER, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
DREW S. DAYS, III
Solicitor General
Department of Justice
Washington, D.C. 20530
(202)514-2217
---------------------------------------- Page Break ----------------------------------------
TABLE OF AUTHORITIES
Cases
Page
Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) . . . . 6, 7
Centel Cable Television Co. v. Admiral's Cove
Assocs., 835 F.2d 1359 (11th Cir. 1988) . . . . 8
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) . . . . 6
City of New York v. FCC, 486 U.S. 57 (1988) . . . . 4, 5
Farmers Educ. & Coop. Union v. WDAY, Inc.,
360 U.S. 525 (1959) . . . . 5
Fidelity Federal Saw. & Loan Ass'n v. de la Cuesta,
458 U.S. 141 (1982) . . . . 5
Houston Post Co. v. United States, 79 F. Supp.
199 (D. Tex. 1948) . . . . 3
Howard v. Uniroyal, Inc., 719 F.2d 1552 (11th Cir.
1983) . . . . 10
Kay v., FCC, 443 F.2d 638 (D.C. Cir. 1970) . . . . 6
Louisiana Public Service Commission v. FCC,
476 U.S. 355 (1986) . . . . 4
Maryland v. Louisiana, 451 U.S. 725 (1981) . . . . 5
New England Tel. & Tel. Co. v. FCC, 826 F.2d
1101 (D.C. Cir. 1987), cert. denied, 490 U.S. 1039
(1989) . . . . 9
Plaut v. Spendthrift Farm, Inc., 115 S. Ct. 1447
(1995) . . . . 6
San Diego Building Trades Council v. Garmon,
359 U.S. 236 (1959) . . . . 6
Tafflin v. Levitt, 493 U.S. 455 (1990) . . . . 5
Time Warner Entertainment Co., L.P. v. FCC,
56 F.3d 151 (D.C. Cir. 1995), cert. denied,
l16 S. Ct. 911 (1996) . . . . 9
Town of Deerfield v. FCC, 992 F.2d 420 (2d.
Cir. 1993) . . . . 6
(I)
---------------------------------------- Page Break ----------------------------------------
II
Constitution and statutes:
Page
U.S. Const. Art. VI, Cl. 2 (Supremacy Clause) . . . . 5
Communications Act of 1934, 47 U.S.C. 151 et seq.:
47 U.S.C. 154(i) . . . . 9
47 U.S.C. 315(b) . . . . 2, 3, 5, 6, 7, 8, 9, 10
47 U.S.C. 414 . . . . 7
Rehabilitation Act of 1973, 29 U.S.C. 701 et seq . . . . 10
---------------------------------------- Page Break ----------------------------------------
In the Supreme Court of the United States
OCTOBER TERM, 1995
No. 95-1200
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS
v.
ZELL MILLER, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
1. In our certiorari petition, we show (at 14, 22-24)
that, although the court of appeals ostensibly "dis-
missed]" respondents' petition for review of the
Federal Communications Commission's (FCC) de-
claratory ruling (see Pet. App. 15a), 1. it actually
granted their petition for review, insofar as they chal-
lenged the FCC's authority to preempt state-law
___________________(footnotes)
1 In this brief, "Pet." refers to the petition for a writ of
certiorari in No. 95-1200, and "Pet. App." refers to the appen-
dix to that petition. "Br. in Opp." refers to the candidates'
brief in opposition to the petitions in No. 95-1197 and No. 95-
1200. "Cross-Pet." refers to the cross-petition, No. 95-1361.
(1)
---------------------------------------- Page Break ----------------------------------------
2
causes of action dependent on a determination of a
broadcast station's lowest unit charge under 47
U.S.C. 315(b). Respondents agree that the court of
appeals ruled in their favor on that issue. See Br. in
Opp. 3 (noting that the court of appeals "actually
addressed" the FCC's authority to preempt state
law); id. at 4 (arguing that court of appeals "concluded
correctly that the FCC had no authority to issue the
Declaratory Ruling"). They accept, therefore, that
the issue of the FCC's authority to preempt state-law
causes of action (as well as the propriety of doing so
by the declaratory ruling) is properly presented for
review by this Court.
Respondents argue, however, that the Court should
not grant the government's or the broadcasters' peti-
tion unless it also addresses the court of appeals'
jurisdiction to review the case and the merits of the
FCC's decision to preempt state law. See Br. in Opp.
5 n.2; Cross-Pet. i, 6. In our view, both issues are sub-
sumed within the questions presented by the initial
petitions. We do not, however, oppose the granting of
the cross-petition in order to make clear that the
parties may address those questions.
The cross-petition also presents the issue of Con-
gress's intent on the question of preemption. See
Cross-Pet. i, 11. Because judicial economy and regu-
latory certainty would be served by the Court's
resolution of the entire preemption question, in both
its statutory and administrative aspects, we also do
not oppose the granting of the cross-petition on that
issue. The FCC's declaratory ruling was intended to
provide definitive guidance as to Congress's intent in
Section 315(b). The FCC's analysis of Congress's
preemptive intent was closely connected to its deci-
sion on its own initiative to preempt state law, in that
---------------------------------------- Page Break ----------------------------------------
3
both conclusions involved the agency's analysis of
Congress's objectives. See, e.g., Pet. App. 192-20a.
22a-23a (declaratory ruling's discussion, in both
contexts, of statutory objectives of consistency, cer-
tainty, and uniformity). Although the court of ap-
peals concluded that no case or controversy was
presented as to congressional intent and therefore did
not address that issue, the court's failure to reach the
issue was error, as we have explained (Pet. 18-19, 24
n.19). 2.
___________________(footnotes)
2 Respondents argue (Br. in Opp. 4-5) that, although the
court of appeals "concluded correctly that the FCC had no
authority to issue the Declaratory Ruling," that court "prop-
perly declined to render an advisory opinion on the issue of
Congressional intent" to preempt state-law causes of action
under Section 315(b). See also Cross-Pet. 7. Respondents do
not explain, however, how there could be a case or controversy
as to the former issue but not the latter-especially since the
FCC concluded, in is declaratory ruling, that Congress itself
preempted state law in Section 315(b). See Pet. App. 19a-21a.
This case is not like Houston Post Co. v. United States, 79
F. Supp. 199 (D. Tex. 1948), in which a three-judge district
court dismissed a petition for review of an FCC licensing order
for lack of a justiciable controversy. In that case, the petitioner
radio station's objection was directed not to the FCC's action
(renewing another station's license) but to the possible prec-
edential effect of some of the FCC's accompanying statutory
analysis. The district court relied on representations by
agency counsel that the FCC "did not intend to, nor did it, by
giving expression as to its opinion as to [the meaning of the
statute], add anything either of substance or of sanction to, the
law." Id. at 202. By contrast, here the FCC intended its
interpretation of Section 315(b) to have actual, present effect,
including the dismissal of lawsuits predicated on alleged
violations of that Section. "[T]he pronouncement was in fact
and in law intended to be, and was, an order laying down a
positive rule of law." 79 F. Supp. at 203.
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4
2. Respondents do not dispute that the preemption
questions at issue in this case are important. Rather,
they present several arguments in defense of the
judgment below; because those arguments go to the
merits of the case, we will address them only briefly.
a. Respondents argue (Br. in Opp. 5-6) that the
FCC has no authority to preempt "state causes of
action or the jurisdiction of any court" because Con-
gress has not expressly delegated it such authority.
The proper analysis, however, focuses not merely on
whether such authority has been expressly delegated,
but on whether the FCC's preemption decision "rep-
resents a reasonable accommodation of conflicting
policies that were committed to the agency's care by
the statute." City of New York v. FCC, 486 U.S. 57,
Service Commission v. FCC, 476 U.S. 355, 374 (1986),
but that case, as the Court explained in City of New
York, 486 U.S. at 66, involved a provision "in which
Congress appeared to have expressly limited the
Commission's jurisdiction, so as to prohibit it from
preempting" certain state laws. Because the pro-
vision at issue in the Louisiana case was a "con-
gressional denial of power to the FCC," the Court
there rejected the argument that "the FCC may
nevertheless take action which it thinks will best
effectuate a federal policy." 476 U.S. at 374. No
corresponding limit on the FCC's authority to
preempt state law is a tissue in this case, and so,
under the proper analysis, the courts should not
disturb the FCC's judgment unless "the accommoda-
tion [of policies] is not one that Congress would have
sanctioned." City of New York, 486 U.S. at 64.
Respondents do not dispute that Congress may
confide the initial responsibility for resolving federal
---------------------------------------- Page Break ----------------------------------------
5
statutory issues to a federal agency, subject to review
only in the federal courts. See Pet. 15-16. This Court
has also made clear that , under the Supremacy
Clause, "[f]ederal regulations have no less pre-
emptive effect than federal statutes." Fidelity
Federal Sav. & Loan Ass'n v. de la Cuesta, 458 U.S.
141, 153 (1982). It is simply incorrect, therefore, to
say (as did the court of appeals) that Congress "could
not delegate[] the power to any agency to oust state
courts and federal district courts of subject matter
jurisdiction." Pet. App. 10a. That "ouster" of judicial
jurisdiction is merely the necessary consequence of
the FCC's determination that state-law causes of
action should be preempted. Because the FCC has
concluded that certain causes of action related to
Section 315(b) should be preempted, courts should
dismiss suits to the extent that they attempt to raise
such claims. See Pet. App. 24a-26a, 59a; cf. Farmers
Educ. & Coop. Union v. WDAY, Inc., 360 U.S. 525,
527 (1959).
Respondents err in relying (Br. in Opp. 5) on cases
such as Tafflin v. Levitt, 493 U.S. 455, 459 (1990), and
Maryland v. Louisiana, 451 U.S. 725 (1981), for a
presumption that "Congress did not intend to displace
state law." That presumption is an interpretive
canon used in implied preemption cases, in the ab-
sence of an express preemption provision, to deter-
mine whether state law has been displaced. It has no
bearing in this case, since the FCC unambiguously
stated its intent to preempt state-law claims that are
dependent upon a determination of the lowest unit
charge under Section 315(b). Cf. City of New York,
486 U.S. at 65.
b. Respondents argue (Br. in Opp. 6-8, 11-12) that,
as applied to cases in the federal courts, the FCC's
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6
preemption of state-law causes of action violated the
separation of powers by interfering with the power of
the federal courts to render final judgments. That
contention is without merit. Unlike the statute at
issue in Plaut v. Spendthrift Farm, Inc., 115 S. Ct.
1447 (1995), or the FCC order on review in Town of
Deerfield v. FCC, 992 F.2d 420 (2d Cir. 1993), the
declaratory ruling at issue here does not purport to
revise or reopen any final, unappealable judgment
based on a prior construction of federal law. Al-
though the FCC in its ruling did state that state-law
causes of action based on the lowest-unit-charge rule
should be dismissed (see Br. in Opp. 8; Pet. App. 402-
41a n.8), that remark merely explained the necessary
effect of the FCC's preemption ruling on a future or
ongoing case, just as a lawsuit raising issues of
federal labor law should be dismissed if those issues
must be considered in the first instance by the
National Labor Relations Board. See San Diego
Building Trades Council v. Garmon, 359 U.S. 236,
246 (1959).
c. Respondents also argue (Br. in Opp. 9-10) that
federal agencies have no authority to issue "[b]inding
[i]nterpretation[s] of [c]ongressional [i]ntent" on the
question of preemption. Whether or not the FCC's
interpretation of Section 315(b) is "binding," it is
entitled to deference under Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S.
837 (1984), for Congress has vested the FCC with the
authority to enforce the substantive provisions of
Section 315(b) with respect to "all federal, state and
local candidates for office throughout the nation."
Kay v. FCC, 443 F.2d 638, 643-644 (D.C. Cir. 1970). By
contrast, in Adams Fruit Co. v. Barrett, 494 U.S. 638
(1990), the principal case relied on by respondents, the
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7
Court stated that it would not defer to the Depart-
ment of Labor's view on whether a federal statutory
private right of action is precluded by receipt of state
workers' compensation benefits because Congress
had "expressly established the Judiciary and not the
Department of Labor as the adjudicator" of private
rights under the statute. Id. at 649.
Respondents attempt to distinguish the numerous
cases in which the courts have upheld agencies'
authority to preempt state regulatory authority or
common-law causes of action on the ground that those
cases did not implicate the courts' power to exercise
judicial jurisdiction. Br. in Opp. 10-11. They do not
explain, however, why the FCC should unquestion-
able have the authority to preempt the exercise of
regulatory authority under state law by state utility
commissioners, which otherwise could give rise to
enforcement actions in the state courts (or
by federal courts sitting in diversity). Indeed, this
case presents a compelling case for preemption of
state remedies, for the causes of action that re-
spondents wish to advance, although nominally aris-
ing under state law, are in fact predicated on the
federal lowest-unit-charge rule of Section 315(b). 3.
___________________(footnotes)
3 For the same reason, respondents err in suggesting (Br.
in Opp. 6) that 47 U.S.C. 414, which provides that "[n]othing in
th[e] [Communications Act] shall in any way abridge or alter
the remedies now existing at common law," negates FCC
authority to preempt state causes of action requiring a deter-
mination of the lowest unit charge. As the FCC explained, the
savings clause has no bearing on state-law causes of action that
"have no meaning apart from Section 315(b) and thus derive
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8
d. In their cross-petition, respondents argue (at 9-
10) that the FCC must lack authority to preempt
state-law causes of action predicated on a determina-
tion of the lowest unit charge because it also lacks
authority to order an adequate replacement remedy,
such as a refund to overcharged candidates. In fact,
the FCC does have authority to order broadcasters to
provide rebates to candidates to remedy violations of
the lowest-unit-charge rule, and it has exercised that
authority in the past. See Pet. 5 & n.3; Pet. App. 61a,
77a n.51. Thus, this is not a situation in which the
agency action under review "does not provide access
to any type of administrative process." Centel Cable
Television Co. v. Admiral's Cove Assoc., 835 F.2d
1359, 1363 (11th Cir. 1988). 4.
Respondents stress (Cross-Pet. 9) that the FCC's
express refund authority under the Communications
Act applies only to common carriers, and not broad-
casters. The fact that Congress expressly gave the
FCC authority to order rebates by common carriers,
___________________(footnotes)
not from any 'existing' state common law or statutory origin,
but solely from the federal statute." Pet. App. 26a.
4 Respondents suggest (Cross-pet.9) that the FCC did not
provide a remedy for a broadcaster in the situation in which a
candidate refuses to pay for advertising and claims that the
broadcaster's rate exceeded the lowest unit charge. They sug-
gest that the broadcaster in that situation would be deprived of
its remedy under state law (such as a collection action) without
any adequate replacement. That case, however, would arise
only when the candidate declines to invoke the FCC's
jurisdiction to adjudicate a claim that the broadcaster violated
Section 315(b) and instead relies on the self-help remedy of
withholding payment. Such a party would not be well situated
to complain that a collection action could not be brought in
state court because it would raise the lowest-unit-charge issue
as a defense.
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9
however, does not justify an inference that it intended
to preclude the FCC from ordering rebates by
broadcasters. The FCC's general authority under 47
U.S.C. 154(i) to "issue such orders * * * as may be
necessary in the execution of its functions" has been
held sufficient to sustain rebate orders. See New
England Tel. & Tel. Co. v. FCC, 826 F.2d 1101, 1107-
1108 (D.C. Cir. 1987), cert. denied, 490 U.S. 1039
(1989); cf. Time Warner Entertainment Co., L.P. v.
FCC, 56 F.3d 151, 196 (D.C. Cir. 1995) (upholding FCC
authority to order refunds for unlawful basic cable
television rates, even though statute expressly
authorized refunds only for premium cable rates),
cert. denied, 116 S. Ct. 911 (1996).
e. Respondents suggest that primary jurisdiction,
rather than preemption, is the proper response to
concerns about uniform construction of Section
315(b). The FCC found, however, that because the
doctrine of primary jurisdiction is of uncertain appli-
cation, there could be no assurance that a particular
court would refer the liability issue under Section
315(b) to the FCC in the first instance. The FCC also
noted the danger that state courts could issue
remedies inconsistent with those deemed appropriate
by the FCC; that possibility might discourage broad-
casters from carrying political advertising, thereby
frustrating Congress's purpose of "foster[ing] dis-
semination of information regarding political cam-
paigns." Pet. App. 60a.
f. Finally, respondents make a broad-gauged
attack on the reasoning employed by the FCC in
concluding that state-law causes of action were (by
Congress) and should be (by the agency) preempted.
They argue, for example (Cross-Pet. 11-13), that the
question of the existence of an implied private right of
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10
action is irrelevant to the preemption issue. We
agree that the two questions are distinct, but they
are related; indeed, in Howard v. Uniroyal, Inc., 719
F.2d 1552, 1556 (11th Cir. 1983), relied on by res-
pondents (Cross-Pet. 11), the court concluded that the
same evidence concerning the "legislative history,
structure, purpose and scope" of the Rehabilitation
Act of 1973 both supported preemption of state-law
claims and negated the existence of an implied federal
cause of action. The two issues are related because
they both implicate Congress's intent to "centralize"
enforcement of Section 315(b) in the FCC, rather than
in private actions pursued in the courts (state or
federal). See Pet. App. 56a.
* * * * *
For the foregoing reasons, and also for the reasons
set forth in the petition, the petition for a writ of
certiorari should be granted.
Respectfully submitted.
DREW S. DAYS, III
Solicitor General
March 1996
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